After mass atrocity, there are a number of different processes that may occur under the broad definition of ‘Transitional Justice’. Transitional Justice is extremely difficult to define as there are many different aspects to it and it addresses social, legal, political and cultural aspects of society. A widely used definition of Transitional Justice is that of the United Nations, who in define Transitional Justice as: “the full set of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuse, in order to secure accountability, serve justice and achieve reconciliation” (2004). Broadly, the aim of transitional justice is to rebuild and reconcile society after mass atrocity, bring perpetrators to account and provide a sense of justice for victims and survivors. As implied by the name, Transitional Justice is used during a period of societal and political change usually after authoritarian rule or conflict. The International Center for Transitional Justice (ITCJ) is an international non-profit organization that specializes in the field of transitional justice. They are currently the largest international organization working towards providing technical expertise and knowledge to societies in a period of transition. They work to help these societies address and overcome their legacies of atrocities and build trust in state and civic institutions.
There are a wide number of techniques that may be involved in Transitional Justice. Outlined below are some of these concepts and examples of their use in post-conflict situations. This list is not exhaustive but does outline some of the key methods used to ensure justice and reconciliation after conflict.
1. Judicial and Punitive Justice: Criminal courts and tribunals, both national and international, are the dominant form of judicial and punitive justice. The aim of judicial and punitive justice is to bring perpetrators to account for their actions and provide justice for the victims through legal means. Criminal Tribunals also provide a legal and historical account of what happened during conflict. The initial example of international post-war transitional justice was the Nuremberg trials, established by the allies after the Second World War with the aim of bringing Nazi perpetrators to justice. Although the courts were criticised for being a form of ‘Victor’s Justice’ imposed by the winners of the war, the legacy of the trials is undeniable and they paved the way for future international jurisprudence after conflict. In the mid-1990s two ad-hoc criminal tribunals: the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda were established during conflict. The work of both courts is ongoing but in total, the ICTY indicted 161 people and 80 perpetrators have been sentenced. In 2002, the International Criminal Court was established as a form of international centralised international jurisprudence. The ICC is an independent, permanent criminal court that tries the gravest of crimes and intervenes when a national authority is unable or unwilling to do so. They indict suspects of war crimes, crimes against humanity and genocide. More information can be found about the ICC on their website. National and international forms of justice are often used alongside each other. National courts may be used to try lower level perpetrators with international courts trying the orchestrators of mass atrocity. Alternatively, trials can be started in the international courts and then transferred to national courts to complete the process, a model used by the ICTY to complete trials post-conflict.
2. Restorative Justice: The main focus of restorative justice is to reconcile and rebuild society and societal relationships in the aftermath of atrocity. Restorative justice can be both an individual or societal change, in post-atrocity transitional societies, restorative justice focuses on restoring society on the large scale. One major example of restorative justice is the use of Truth and Reconciliation Commissions (TRCs). The aim of a TRC is to encourage the unveiling of the truth about the events that happened as well as to provide a form of justice and truth telling for the victims. The most well known TRC was established in 1996 after the end of apartheid in South Africa. The South African model of the Truth and Reconciliation Commission did not charge the perpetrators with crimes, rather the intention was to reveal the truth of what happened. Perpetrators and victims from both sides could appear in front of the commission and tell their individual story in exchange for amnesty for their crimes. Truth and Reconciliation Commissions were also used in post-dictatorship transitional societies in South America stemming from abuses perpetrated in the 1970s. In 1996, the Commission for Historical Clarification was established in Guatemala. It aimed to examine the truth of atrocities perpetrated in Guatemala during the civil war between 1962 and 1996. Over 100 small commissions were formed so people could appear in front of the commission and testify, in 1999 final report ‘clarifying’ what happened during the conflict was published. Over forty TRCs have been established globally with varying degrees of success. Some released full reports regarding the nature of atrocities perpetrated, whereas, some other TRCs did not finish their investigations. They can be established to examine particular incidents (for example, a TRC was established in Canada to investigate the treatment of Aboriginal men and women who were held in residential schools) or they can be used to establish the facts surrounding the conflict as a whole (as with Guatemala and South Africa). A TRC does not necessarily happen in the immediate aftermath of atrocity and mass violence and could happen years after the end of a regime. They are often used in cases of lengthy conflict or where the atrocity was systemic and therefore there are too many perpetrators to individually try (as was the case with South Africa). In many conflicts, there is a fine line between who was perpetrator and who was victim and TRCs are often used in these situations. It is difficult to assess the success of a TRC as perpetrators are not usually charged or sentenced for their actions and the focus is instead on creating a narrative of events. However, this does create a valuable narrative of the conflict from the perspective of both victims and perpetrators.
3. Apologies and Memorialisation: All over the world, there are obvious reminders of genocide in the form of memorial statues, museums, public buildings, place names, etc. this is a key form of memorialisation of mass atrocity. Memorialisation and apologies act to remember and honour the victims of atrocity. Arguably one of the most famous museums dedicated to victims of mass atrocity is the United States Holocaust Memorial Museum. The museum has both extensive online archives and an extraordinary collection of artifacts housed in Washington DC. Documentation of both historic and contemporary human rights atrocities is extremely important in unveiling the truth of what happened, leading to atrocities and memorials, and there are a number of international and national NGOs dedicated to investigating atrocity. Memorialisation and apologies often accompany each other and a formal apology can be accompanied by the construction of a dedicated memorial. Apologies may be issued by a government after atrocity, often many years later. For example, an apology to the indigenous peoples of Australia for atrocities that occurred during colonisation, and subsequent prejudice and discrimination, came from the Australian government in 2008 to address atrocities beginning in 1800. A number of different Aboriginal organisations worked together to push the Australian government for recognition and the efforts were assisted by the Australian Human Rights Commission. Apologies and memorials are not always institutionalised forms of transitional justice and in some cases, memorials are established by civil society organisations or non-governmental organisations.
4. Reparations and Restitution: Reparations and restitution both act to restore and compensate the survivors of mass atrocity. However, the specific way this is done differs. Restitution is the restoration of something that was lost or taken away to the rightful owner, for example returning looted artworks or property to the rightful owner. Reparations, on the other hand, are a form of compensation for what the victims suffered and may be in the form of monetary compensation. Both reparations and restitution were an important part of reconciliation in post WWII Germany and were paid to individuals and also internationally to invaded countries. As is evident from the legacy of both WWI and WWII, restitution and reparations are not quick processes and may take decades, or even longer, to be fully realised. Some form of restitution and reparation is usually used after conflict as part of the post-conflict rehabilitation process.
5. Institutional Reform/Lustration: Institutional reform and lustration is the process whereby the ruling parties or key members of the political hierarchy are removed from their positions and the oppressive government is effectively ‘cleansed’ of their association with mass atrocity. As such, this is commonly used after atrocity to distance the current government from the perpetration of crimes. For example, lustration was used after the collapse of the USSR to remove former Communist officials from power. However, lustration or institutional reform often fail to work as planned and individuals and political groups can sometimes remain in power or have greater influence than intended, especially in countries in which political and legal corruption is systemic. In early 2014 in the Ukraine, calls for excluding from public office civil servants who worked under Ukrainian President Viktor Yanukovych for more than a year gained momentum. It applied to civil servants who had worked between February 2010 and February 2014 and also those who were active in the Communist Party of the Soviet Union, they may be excluded for five to ten years. The complete process of checking all civil servants is expected to be completed at the end of 2016. Lustration was one of the key requests of the protestors against the Ukrainian government in 2014 and led to the establishing of the Ukrainian Lustration Committee.
6. Denial: While this is not strictly a form of Transitional Justice, it is an important concept to mention. In many cases, governments refuse to acknowledge past atrocities and do not recognise the victim groups or past events. Atrocities can either be actively covered up (for example, intimidation of witnesses, removal of bodies or hiding of evidence) or passively ignored. Investigations of crimes can be blocked or derailed and the perpetrators, or leaders endorsed by the perpetrators, remain in power. The Soviet government refused to acknowledge the existence of the Gulags and political purges that had been administered during Stalin’s regime. There are a small number of NGOs working to raise awareness of Soviet atrocities but they come across stumbling blocks and restrictions in opening archives and continuing their work. One such NGO is Memorial who have been active since 1989 in installing monuments and researching human rights violations. Their work has been halted on numerous occasions and most recently, they were labelled as a ‘Foreign Agent’ by the Russian Government which led to their offices being searched and increasing restrictions on their movement and research. More information about Memorial can be found on their website: http://www.memo.ru/eng/. Apologies, memorials, reparations and criminal tribunals sometimes only come after years of denial that crimes were perpetrated.
There are some major limitations to the reach and effectiveness of Transitional Justice. In most cases, it is difficult to charge all perpetrators with an act, especially in cases where injustice was widespread and ingrained in society. One of the main challenges after mass atrocity is to prescribe the correct form of justice. What works in one situation will not necessarily work in another and therefore local cultural considerations must be taken into account. In many cases, a number of techniques are used together to provide a sense of justice for victims and survivors and to bring perpetrators to account. Despite its limitations and the challenges it faces, Transitional Justice continues to be one of the most important post-conflict processes and is extremely effective in rebuilding society after atrocity.