Transitional Justice (1/2)
Dr. Inas Mohamed Ahmed
The concept of transitional justice emerged amid growing international attention to addressing gross human rights violations in post-war societies transitioning towards peace and freedom. Countries emerging from war and conflict often face various forms of crimes and violations that become more apparent after hostilities end, leaving a heavy burden on both the state and its citizens.
Over time, the scope of transitional justice has expanded to encompass various legal disciplines, judicial and non-judicial mechanisms, and numerous political, cultural, developmental, economic, social, historical, and ethical dimensions—thus covering all aspects of life.
However, the key questions remain:
When did the concept of transitional justice first emerge?
How has it evolved over time?
Origins and Evolution of Transitional Justice
There are multiple perspectives on the origins of transitional justice:
Political Transitions in Eastern Europe, Latin America, and Africa
Some scholars argue that transitional justice took shape through political transformations in Eastern Europe, Latin America, and parts of Africa as these regions transitioned toward democracy.
This view is largely supported by international relations experts, who believe transitional justice arose as a response to significant political shifts in these regions.
The Nuremberg Trials (1945)
Another perspective traces the origins of transitional justice back to the Nuremberg Trials in 1945, following World War II.
The victorious Allied powers expanded the scope of criminal law at the time to prosecute the military and political leaders of Nazi Germany and Imperial Japan.
This approach focused on criminalizing the specific acts committed rather than just their political backgrounds.
The Genocide Convention was established as a legal framework, drawing global attention to war crimes and state-sponsored atrocities.
Legal scholars argue that this period significantly contributed to the development of international criminal law and strengthened global awareness of justice mechanisms.
Truth Commissions and the Cold War Era
Some researchers believe transitional justice emerged during the Cold War and the 1980s, as various nations experienced internal conflicts and crimes against humanity.
The establishment of truth commissions played a crucial role in this phase.
Key examples include:
Uganda (1974): First-ever “Commission of Inquiry into Forced Disappearances.”
Bolivia (1982): Investigations into political crimes and human rights violations.
Argentina (1983): A truth commission was set up to investigate enforced disappearances under the military regime (1976-1983).
During this time, civil society organizations and grassroots movements played a key role in demanding justice and accountability.
One notable example is South Africa, where:
Lawyer and politician Alex Boraine advocated for transitional justice.
In 2000, he gathered human rights activists, including legal expert Priscilla Hayner, to discuss strategies for supporting post-conflict societies.
This led to the founding of the International Center for Transitional Justice (ICTJ) in 2001, with contributions from over 50 countries.
The goal was not to copy and paste transitional justice models across nations but to learn from past experiences and avoid their shortcomings.
Case Study: South Africa’s Truth and Reconciliation Commission
South Africa suffered three decades of armed conflict under Apartheid (1960-1990).
In 1990, political negotiations began, leading to:
The Interim Constitution (1993)
Democratic elections (1994) resulted in Nelson Mandela becoming President of South Africa.
In 1995, South Africa established the Truth and Reconciliation Commission (TRC) under the National Unity and Reconciliation Act.
The TRC aimed to:
End Apartheid
Transition the country towards democratic governance.
Prevent civil war and further division.
Provide reparations for victims of human rights abuses.
Transitional Justice and the Role of International Courts
In later years, transitional justice became more formalized with the establishment of:
The International Criminal Tribunal for the former Yugoslavia (1993)
The International Criminal Tribunal for Rwanda (1994)
The Rome Statute (1998), leading to the formation of the International Criminal Court (ICC)
These legal frameworks contributed to the signing of several peace agreements, such as:
The Arusha Agreement (Burundi)
The Marcoussis Agreement (Ivory Coast)
When the Rome Statute came into effect in 2004, establishing the ICC as a permanent international tribunal, it became a turning point in how the global community dealt with human rights violations and war crimes.
Defining Transitional Justice
Based on historical developments, transitional justice can be broadly defined as:
“The process through which a society seeks to achieve reconciliation by reconfiguring justice and establishing the rule of law, acknowledging past human rights violations, and holding perpetrators accountable.”
This definition is built upon two fundamental conditions:
A society in transition
Either from armed conflict to peace or from authoritarian rule to democracy.
The shift must be from a negative state (war, oppression) to a positive state (stability, democracy).
Past human rights violations
Documented cases of violations must exist.
The legal and institutional framework must be designed to redress past injustices and hold perpetrators accountable.
Key Pillars of Transitional Justice
For transitional justice to be effective, it must be context-specific and built on four essential pillars:
Context-Specific Framework
Each country has its own unique historical and social circumstances.
Justice mechanisms must align with national priorities and past events.
State-Led Initiatives
Governments must take ownership of transitional justice efforts.
Justice initiatives must be recognized, implemented, and endorsed by the state.
A shared vision for the future must be developed.
Victim and Community Participation
Victims and affected communities must play a role in designing and implementing justice mechanisms.
Reparations and compensation programs must directly involve those harmed.
Accountability and Institutional Reform
Perpetrators must be prosecuted according to the law.
Legal safeguards must be introduced to prevent future human rights violations.
Institutional reforms should include judicial independence and constitutional amendments.
Conclusion: The Future of Transitional Justice
Transitional justice is not just about addressing past crimes—it is about building a just future.
The success of any transitional justice process depends on:
A society’s willingness to confront its past
Determining when and how justice should be implemented
Ensuring victims’ rights and dignity remain at the core of the process
Ultimately, transitional justice must serve the victims first, ensuring they receive recognition, justice, and reparations while paving the way for a legal system that respects human rights and the rule of law.