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Transitional Justice

Transitional Justice. Introduction. Transitional justice - definition.

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Transitional Justice

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  1. Transitional Justice Introduction

  2. Transitional justice - definition • “The set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses. These measures include criminal prosecutions, truth commissions, reparations programs, and various kinds of institutional reforms.” (International Center for Transitional Justice, New York)

  3. Transitional justice - definition • “The conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.” (Ruti Teitel, “Transitional Justice Genealogy,” http://www.law.harvard.edu/students/orgs/hrj/iss16/teitel.pdf)

  4. Transitional justice - definition • “For the UN system, TJ is the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. It consists of both judicial and non-judicial processes and mechanisms, including prosecution initiatives, facilitating initiatives in respect of the right to truth, delivering reparations, institutional reform and national consultations. Whatever combination is chosen must be in conformity with international legal standards and obligations.” (UN Rule of Law)

  5. History of TJ • TJ implemented after each wave of democratization • 1st wave (1886-1926) • 2nd wave (1945-1962) • 3rd wave (1974-1995) • Reckoning with the past gained in importance after WWII • Term first used in reference to Latin American post-junta regimes (1980s)

  6. Cont. • By 2011 many countries have already implemented TJ, and many others have repressive pasts that could/should be investigated • TJ considered today a must for every new democracy – see Arab Spring countries

  7. Transitional Justice TJ = Transition + Justice But: Transition no longer needed for TJ TJ goes beyond justice

  8. Transition Regime change, major political transformation that affects political institutions and political culture • From authoritarianism to democracy (Western Europe after 1945, Eastern Europe after 1989, some Arab countries after 2011) • From conflict to peace and stability (Asia, Latin America after the 1970s, some African countries) Change in mentality within the same democratic political system (Canada, Australia, the US)

  9. Justice • Judicial methods: • Prosecuting high-ranking and low-ranking officials and perpetrators in • International tribunals (ICC, ICTR, ICTY) • Hybrid courts – with both international and national elements/staff (SCSL) • National courts (Saddam, Ceausescu) • Local, gacaca courts (Rwanda)

  10. Judicial methods – cont. • Reparation/compensation for victims and/or their surviving relatives • Rehabilitation of former political prisoners – annulling their sentence and recognizing their innocence and political persecution

  11. Non-judicial methods • Truth (and reconciliation) commissions • Programs for reconciling fractured societies • Reforming repressive state institutions (army, police, secret police) • Rewriting history books • Opening museums, erecting statues and monuments, changing street names (Memorializing and remembering victims) • Official apologies and condemnations delivered by presidents and prime ministers

  12. Cont. • Diminishing the pensions and salaries of perpetrators • Citizens’ opinion tribunals • Lustration and purges • Access to secret files • Reintegration of former combatants • Property restitution • Forensic investigations • Symbolic reparation – medals, decorations

  13. Synonyms for TJ • Justice during transition • Politics of memory, politics of the past • Coming to terms with the past • Reckoning with the past • Wiedergutmachung (making good again) • Geschichtsbewältigung (the process of coming to terms with history) and Vergangenheitsbewältigung (the process of coming to terms with the past)

  14. Goals of TJ • Truth • Justice • Reconciliation Not all methods are equally adept to reach all these goals at all times. Not all countries want truth, justice and reconciliation. And not all goals can be achieved at all times.

  15. Why some methods are adopted at some times? • The methods countries adopt to deal with their past are determined by: • The nature of past repression • Deep vs. wide repression (court trials vs. lustration) • Property restitution is not applied in countries where no property was abusively confiscated • The goals countries seek to reach (truth, justice or reconciliation) • The “politics of the present” (old, tainted elites oppose, whereas new, untainted elites support TJ) • International factors – presence/absence of international interest for the country

  16. Effects of TJ • Prevents future human rights abuses • Strengthens rule of law by showing that nobody is above the law • Provides reparations for victims and imposes sanctions on those responsible • Reconstitutes the community • A must for democracy (respect for human rights) • Break with the repressive past • Allows for elite replacement – lustration/purges

  17. Dangers of implementing TJ • Revenge, extra-judicial killings • Perpetuates social conflict • Divides society/community further • Prevents full democratization by not allowing societies to move away from past issues

  18. Dangers of not implementing TJ • Citizens cannot trust each other • Crimes go unpunished – impunity • Cruel, undemocratic elites continue to dominate the political process • Old elites can use their new positions to destroy evidence implicating them in human rights abuses • Leaks of information will occur, leading to recurrent public scandals tainting the entire political class • The past must be addressed, even if later (see Spain)

  19. Obstacles to TJ • Large number of victims and perpetrators beyond capacity of judiciary • Weak, corrupt, tainted and ineffective judiciary • Amnesties negotiated through transition • Statutes of limitations • Categories not clear-cut (victims might also be victimizers) • Crimes not recognized as such by previous system’s legislation • Perpetrators still influential

  20. What TJ refers to? • Current political attempts to deal with the past • Investigations of actions of governments (or institutions or organizations sponsored or supported by the government) • Widespread human rights abuses – not one killing (even if of a very important person) • Usually abuses committed during a defined period of time (several years to a decade), but sometimes entire regimes (Apartheid, the Soviet regime) • The past must be somewhat recent

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