Transitional Justice - History

History

The origins of the transitional justice field can be traced back to the post-World War II period in Europe with the establishment of the International Military Tribunal at Nuremberg and the various de-Nazification programs in Germany and the trials of Japanese soldiers. To be precise, what became known as the "Nuremberg Trials", when the victorious allied forces extended criminal justice to Japanese and German soldiers and their leaders for war crimes committed during the war, marked the genesis of transitional justice. The field gained momentum and coherence during the 1980s and onwards, beginning with the trials of former members of the military juntas in Greece (1975), and Argentina (Trial of the Juntas, 1983). The focus of transitional justice in the 1970s and 1980s was on criminal justice with a focus on human rights promotion. This led to a worldwide focus and progressive rise of human rights regime culminating in the establishments of international human rights laws and conventions.

The emphasis of transitional justice was on how abuses of human rights get treated during political transition: legal and criminal prosecution. As noted earlier, the universal conceptions of "justice" became the platform on which transitional justice was premised. The field in its early epistemology, thus, assumed jurisprudence of human rights. It is no surprise then that initial literature on transitional justice was dominated by lawyers, law, and legal rights: defining laws, and processes on how to deal with human rights abuse and holding people accountable. Thus, transitional justice has its roots in both the human rights movement and in international human rights and humanitarian law. These origins in the human rights movement have necessarily rendered transitional justice “self-consciously victim-centric”.

The late 1980s and early 1990s saw a shift in the focus of transitional justice. Informed by the worldwide wave of democratization, particularly the third wave, transitional justice reemerged as a new field of study in democratization. Transitional justice broadened its scope from more narrow questions of jurisprudence to political considerations of developing stable democratic institutions and renewing civil society. Studies by scholars on the transition from autocratic regimes to democratic ones have integrated the transitional justice framework into an examination of the political processes inherent to democratic change. The challenges of democratization in transitional periods are many: settling past accounts without derailing democratic progress, developing judicial or third-party fora capable of resolving conflicts, reparations, and creating memorials and developing educational curricula that redress cultural lacunae and unhealed trauma.

It is clear that elements of transitional justice have broken the initial mold of post-war jurisprudence. The transitional justice framework has benefited from democratic activists who sought to bolster fledgling democracies and bring them into line with the moral and legal obligations articulated in the international human rights consensus.

One particular innovation is the appearance of truth commissions. Beginning with Argentina in 1983, Chile in 1990, and the most popular, South Africa in 1995, truth commissions have become a symbol of transitional justice, appearing in transitional societies in Latin America, Africa, Asia, and Eastern Europe. However, several attempts to create a regional truth commission in the former Yugoslavia (REKOM) have failed due to political obstacles. Recent years have also seen proposals for truth and reconciliation commissions in conflict zones of the Middle East and it is likely that these transitional justice institutions will someday figure prominently in Israel and Palestine, Iraq, Lebanon, and the Kurdish regions.

Another major institutional innovation is the appearance of the variety of lustration programs in Central and Eastern Europe since the 1990s. While most countries pursued programs based on dismissals of compromised personnel and comprehensive screening tools, other countries implemented more inclusive methods allowing discredited personnel a second chance.

As a link between transition and justice, the concept of transitional justice transformed in the late 1940s to assume a broader perspective of comprehensive examination of the society in transition from a retrospective to a prospective position with democratic consolidation as one of the primary objectives. Scholars and practitioners of democratization have come to a common conclusion on the general principles of a transitional justice framework: that national strategies to confront past abuses, depending on the specific nature and context of the country in question, can contribute to accountability, an end to impunity, reconstruct state–citizen relations, and the creation of democratic institutions.