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Redefining Transitional Justice in the Twenty-First Century

Transitional justice has traditionally been defined as ‘the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.’[1] In this book, however, we adopt a broader understanding of transitional justice that extends both the constitutive elements of transition and justice beyond their original conceptualizations. By redefining its parameters, we hope to reflect developments in both the practice and study of transitional justice that have seen its contours significantly expanded over the past three decades.

Although transitional justice has been practiced since at least the time of the ancient Greeks and found form in the aftermath of World War II with the Nuremberg and Tokyo Trials, the origins of the contemporary study and practice of transitional justice are most commonly associated with the ‘third wave’ of democratic transitions from authoritarian rule in the 1980s in Latin America.[2] Democratization in this context commonly referred to the movement from a repressive and closed regime, such as military, authoritarian, and one-party dictatorships, or communist regimes, to more open and decentralized government marked by free, fair, secret, and direct national elections for major government offices including head of state.[3] Reflecting this, transitional justice was primarily focused on ‘justice associated with periods of political change’, specifically the ‘movement from repressive regimes to democratic societies.’[4] Justice, in this context, was generally conceived in terms of the establishment of trials and truth commissions to address past human rights violations.

Starting from the mid-1990s, however, the parameters of the ‘transitions’ included within the scope of transitional justice began to expand into areas that had traditionally been demarcated in scholarly terms as the concerns of conflict resolution and peace building. With this, movements from conflict to peace (or some other sort of post-conflict state) associated with the end of civil wars and periods of violent instability came to also be viewed as transitions. In these types of contexts, political transitions were primarily brought about by one party to a conflict inflicting a decisive victory over their adversaries or by the signing of a peace accord, often mediated by international actors. Significantly, these types of transition have not always accompanied movements from authoritarian rule to democracy, but also occurred within established democracies like Northern Ireland. In large part, this spillover of the study of transitional justice into conflict resolution and peace building reflected changing practices in world politics. In particular, in the face of new ethnic and civil conflicts in Yugoslavia and Rwanda, diplomats, peace negotiators and international organizations considered and actually adopted trials and truth commissions before, during, and after conflict resolution. In scholarly terms, what followed was not simply the encroachment of transitional justice into conflict resolution and peace building, but the simultaneous redefinition of peace building to include the pursuit of justice as a key priority.[5] The result was the establishment of this second type of transition from conflict to peace as a key concern of transitional justice along with justice associated with transitions from authoritarian rule.

At the same time, the concept of justice embedded in traditional understandings of transitional justice has also been expanded beyond its original focus on ‘legal responses... to the wrongdoings of repressive predecessor regimes’ to reflect broader notions of justice.[6] Although some scholars and practitioners hold firm to the view that criminal prosecutions remain the ‘unrivaled’ means of addressing past human rights violations, a dramatic increase in other formal and official responses such as truth commissions, reparations, vetting procedures, and amnesties, as well as in informal and customary practices, has taken place.10 What unites these different approaches to transitional justice, however, is that each seeks to achieve accountability for serious crimes, including human rights violations, committed in the past. Accountability, in this sense, denotes being held responsible or blameworthy for an action or set of actions. In minimal terms, accountability requires ‘actors to accept’ whether forcibly or through their own volition, ‘responsibility for the impact of their action or inaction on human rights.’11 Accountability thus means that ‘some actors have the right to hold other actors to a set of standards, then judge whether they have fulfilled their responsibility and to impose sanctions if they determine these responsibilities have not been met.’12 Accountability may be pursued through trials and punishments or through the provision of compensation or restitution, the issuing of apologies, truth telling, expressions of guilt and repentance, and requests for forgiveness.13

However, these different approaches to transitional justice are not only united in their common pursuit of accountability but in their attempts to right the wrongs of the past. They do this in different ways by pursuing retribution, restoration, reinterpretation, rectification or reparation. Retribution, which is often understood as the most traditional notion of justice - ‘an eye for an eye’ - seeks to establish blame for wrongs committed and administer punishment.14 It is primarily, although not exclusively,

  • 10 Mark Freeman, Truth Commissions and Procedural Fairness, Cambridge: Cambridge University Press, 2006, p. 10.
  • 11 United Nations Human Development Report, 2000, p. 89, at http://hdr.undp.org/en/ media/hdr_2000_ch5.pdf (accessed 3 March 2011).
  • 12 Robert Keohane and Ruth Grant, ‘Accountability and Abuses of Power in World Politics,’ American Political Science Review, Vol. 99, No. 1 (2005), p. 29.
  • 13 Rachel Kerr and Erin Mobekk, Peace and Justice: Seeking Accountability After War, Cambridge: Polity, 2007, p. 4.
  • 14 Howard Zehr, ‘Restorative Justice: The Concept,’ Corrections Today, Vol. 59, No. 7 (1997), p. 68.

manifested in judicial activities such as criminal and civil proceedings and the punishments, which exact certain costs on the perpetrator that followed them.15 Transitional justice may also attempt to right the wrongs of the past by reinterpreting that past, re-establishing suppressed facts, reconceiving distorted ideas, and rewriting official narratives in sanctioned documents and history textbooks. At its most basic, reparative justice seeks to repair damage or harm that has been unjustly inflicted on an individual, group, or state. In its ideal extreme it is ‘designed to re-establish the situation prior to... [a] wrongful act or omission’ and, in doing so, ‘wipe out all consequences of the illegal’ or, indeed, immoral act.16 Reparative justice may be administered through a formal legal system with current efforts concentrated on recovering stolen assets from former dictators for redistribution to victims, or through informal community or grass-roots processes.17 Similarly, restorative justice aims to ‘create peace in communities by reconciling the parties and repairing the injuries caused by the dispute.’18 It commonly does so through truth telling, reconciliation processes, apologies, forgiveness ceremonies, the payment of compensation, and participation in traditional dispute reconciliation practices. Finally, rectification is the restoration of the prior social and political status of the victims of human rights violations and their family members. It seeks to specifically address the injustice of ‘direct physical violence suffered by people during conflict’ by providing

  • 15 Many traditional, customary, and indigenous justice practices also incorporate retributive elements alongside those commonly deemed ‘restorative’.
  • 16 Louis B. Sohn and R.R. Baxter, ‘Responsibility of States for Injuries to the Economic Interests of Aliens,’ American Journal of International Law, Vol. 55 (1961), pp. 545- 546;Jo M. Pasqualucci, ‘Victim Reparations in the Inter-American System: A Critical Assessment of Current Practice and Procedure,’ Michigan Journal of International Law, Vol. 18, No. 1 (1996-1997), p. 25.
  • 17 Ruben Carranza, ‘Plunder and Pain: Should Transitional Justice Engage with Corruption and Economic Crimes?,’ International Journal of Transitional Justice, Vol. 2, No. 3 (2008), pp. 310-330.
  • 18 Burt Galaway and Joe Hudson, ‘Introduction’ to Burt Galaway and Joe Hudson (eds.), Restorative Justice: International Perspectives, Monsey: Kugler, 1996, p. 2;Allison Morris, ‘Critiquing the Critics: A Brief Response to Critics of Restorative Justice,’ British Journal ofCriminology, Vol. 42, No. 3 (2002), pp. 596-615.

restitution or rehabilitation.[7] Of course, these represent ideal types of justice that, in reality, are often pursued in combination with one another. Nonetheless, all, in their different ways, seek to address the wrongs of the past and attempt, as far as is possible, to put those wrongs right.

With this we arrive at our broad understanding of transitional justice as the pursuit of accountability for, and attempts to make right, the wrongs of human rights violations committed in the past associated with major political shifts, including movements from authoritarian rule to democracy, or ruptures, such as those that mark the end of violent conflicts. This understanding, as we will see, not only reflects the changing nature of transitional justice over the past thirty years or so, but provides a starting point for examining the actual dynamics of transitional justice as it is practiced in the Asia-Pacific region.

  • [1] Ruti G. Teitel, ‘Transitional Justice Genealogy,’ Harvard Human Rights Journal,Vol. 16 (2003), p. 69.
  • [2] Jon Elster, Closing the Books: Transitional Justice in Historical Perspective, Cambridge:Cambridge University Press, 2004, p. 1;Neil J. Kritz (ed.), Transitional Justice: HowEmerging Democracies Reckon with Former Regimes, Washington D.C.: United StatesInstitute of Peace, 1995;Paige Arthur, ‘How “Transitions” Reshaped Human Rights:A Conceptual History of Transitional Justice,’ Human Rights Quarterly, Vol. 31, No. 2(2009), pp. 329-331.
  • [3] Samuel Huntington, The Third Wave: Democratization in the Late-Twentieth Century,Norman: University of Oklahoma Press, 1991, p. 7.
  • [4] Richard H. Solomon, ‘Preface’to Neil J. Kritz (ed.), Transitional Justice: How EmergingDemocracies Reckon with Former Regimes, Vol. 3, Washington D.C.: United StatesInstitute for Peace, 1995, p. xxiii.
  • [5] John Paul Lederach, Building Peace: Sustainable Reconciliation in Divided Societies,Tokyo: UNU Press, 1994, p. 14;Michael Barnett, Hunjoon Kim, Madalene O’Donnell,and Laura Sitea, ‘Peacebuilding: What Is in a Name?,’ Global Governance, Vol. 13,No. 1 (2007), p. 44.
  • [6] Teitel, ‘Transitional Justice Genealogy,’ p. 69.
  • [7] Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War, Cambridge:Polity, 2002, p. 7.
 
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