Transitional Justice and Peacebuilding

Transitional justice refers to “justice in a phase of political and social transition”

Transition has a normative dimension;  it means a change in a liberalizing direction.

1. The  scope of transitional justice is limited only to post-authoritarian or post-communist regimes;  it neglects war-torn, post-conflict societies.
2. Second, it is assumed that  the ultimate aim of transitional justice measures as bringing liberal democracy to illiberal regimes 
3. Third, political transitions may last many decades not only a short period of time.
4. Fourth, Teitel’s approach underestimates the role of extra-legal mechanisms, such as education and culture in dealing with the past

This is because  “[i]njustice is not  [just] a consequence of conflict, but is also often a  symptom and cause of conflict,” (Mani, 2007:5). 

It is dealing with gross human rights abuses committed during the conflict, including crimes against humanity and war crimes, through trials and prosecutions, truth commissions, lustration or removal from office reparations, and memorials.

The modern origins of transitional justice can be traced to after World War I.

The first phase of transitional justice began in 1945 with the Allied-run Nuremberg and Tokyo trials. 

Phase II of transitional justice r began with the third wave of democratization and accelerated with the end of the  Cold War in 1990s. 

It is backward-looking because it aims to ensure  accountability for the injustices of the past

1. It ensures accountability for perpetrators responsible for past abuses and crimes either in the form of criminal or noncriminal justice.
2. It aims at establishing the truth about the past human rights abuses is
3. It can foster reconciliation among conflicting parties, thus creating peaceful relations and helping former perpetrators or combatants integrate into society.
4. It can provide a forum for victims to be heard and ensure the acknowledgment of past injustices.
5. It can contribute to developing financial and symbolic reparations programs for victims, survivors, and their families.
6. Transitional justice measures also trigger legal and institutional reforms, such as civilian oversight of the military, new rule for the judiciary, and electoral or land reforms that can foster the consolidation of peace and democracy

It can also be politically instrumentalized for autocratic regime change and consolidation according to Mihr, (2017:1-3).

This can be summarized as the following: on the one hand, victims, survivors, their
families, international organizations, and NGOs demand that new governments prosecute the
perpetrators of war crimes and other gross human rights abuses. On the other, since post-conflict and transitional processes are fragile or perpetrators retain power, seeking accountability for their crimes can have a destabilizing effect on peace and the consolidation of democracy.

This approach advocates the legal and criminal form of accountability for past human rights abuses. It is based on retributive justice which “holds that a particular (violent) action needs to be responded to by punishment and that this breach of a law requires the offender to suffer in return”

According to the minimalist approach, retributive justice can lead to more violence and instability and jeopardize fragile peacebuilding processes. The minimalist approach considers amnesty as the best
way to achieve peace because post-conflict and transitional societies are usually quite vulnerable. 

The moderate approach offers a middle  ground between the maximalist focus on retributive
justice and the minimalist one on full impunity. 

Restorative justice offers a victim-centered approach. 

The holistic approach aims to primarily overcome the tension between retributive and restorative justice, specifically between truth commissions and trials. According to the holistic approach, no single transitional justice measure can address the needs and problems of transitional and post-conflict societies. 

Retributive justice focuses on perpetrators and seeks to ensure criminal justice for their past abuses mainly through prosecution and punishment.

Hybrid courts refer to those that combine a mix of both international and national law and personnel (Kerr, 2017: 53). Hybrid courts were established in many post-conflict countries including Bosnia, Kosovo, Sierra Leone, East Timor, Cambodia, Iraq, and Lebanon with differing degrees of international involvement

Relying on the ideas generated by the South African experience, international experts founded the International  Center for Transitional Justice in 2011.