Transitional Justice: Norms, Developments, and Debates
In the past three decades, transitional justice has emerged as a globally recognized approach to the pursuit of accountability for past human rights violations. Its rise, as a practice and a field of study, has been constituted and accompanied by the increasing acceptance of accountability norms, the development of international jurisprudence and legal practice, the establishment of new justice mechanisms and, of course, the entrenchment of political debates about the desirability, modes, and functions of transitional justice processes and practices. Transitional justice is, as Ruti Teitel (2003) argues, a ‘global’ and ‘normalized’ phenomenon, a set of practices and processes designed to address human rights violations committed by former regimes or during past periods of violent conflict. Although it is not—and is unlikely to become—a universal approach adopted by all states undergoing a political transition or recovering from war, transitional justice is truly global, with states from every region of the world and corner of the earth instituting its key practices in their efforts to address past injustices (Jeffery and Kim 2014; Payne and Sikkink 2014). Such is its prevalence and spread that transitional justice is no longer considered unusual, radical, or particularly revolutionary but is commonly seen as an expected feature of states’ and societies’ attempts to deal with the legacies of past upheavals. It is well and truly what calls ‘a global project’ (2008: 276; Sharp 2015: 517).
In large part, the global transitional justice project offers a set of ‘technocratic and decontextualized solutions’ to problems derived from the fundamental question of how states and societies can and ought to address legacies of past human rights abuses (Nagy 2008: 275). To this end, its rise has been accompanied by the development of what is often referred to as a ‘toolkit’ of mechanisms from which state officials and other actors can pick and choose one or more ways of addressing human rights violations committed in the past (Shaw and Waldorf 2010: 3). This toolkit generally includes prosecutions, truth commissions, reparations, vetting and lustration, institutional reforms, national consultancies (UN Rule of Law), and, in some cases, amnesties (Jeffery 2014b; Olsen et al. 2010). Reflecting this, transitional justice is commonly defined in holistic terms as ‘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’ (UN Rule of Law).
Underpinning this set of common practices is ‘a body of customary law and normative standards’ (Nagy 2008: 276) that make explicit the illegal acts that are categorized as violations of human rights law or international humanitarian law, demarcate the range of legitimate options available to states and societies in their attempts to address violations, and define the rights that victims of abuses can expect to have upheld. Among this body, three norms and their associated laws and practices dominate: the norm of individual criminal accountability, the right to the truth, and the right to a remedy and reparations.