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Transitional justice is the process of accountability, recognition, reconciliation, and redress adopted by newly democratized nations after a period of political upheaval that resulted in widespread human rights abuses. It is a term tied to the notion of transitional democracy, which refers to a nation’s emergence from under a repressive regime into the first stages of a fledgling democracy. The core concepts have been put into practice to address war crimes, ethnic cleansing, gender violence, and other instances of government and military institutions turning against civilian populations.
The notion of transitional justice has roots in World War II and the prosecution of Nazis for war crimes and the mass genocide of the Jewish people. It wasn’t until the late 1980s during the multiple political uprisings against authoritarian regimes in Latin America and Eastern Europe, however, that the term “transitional justice” became popularized by the international community. The term came to identify the process of trying to heal civilian populations that had been subjected to atrocious human rights violations.
One of the seminal moments in the development of this doctrine was the 1988 decision by the Inter-American Court of Human Rights on the matter of Honduras that established the obligation of states to engage in four fundamental actions concerning human rights abuses. The court declared that states were responsible for preventing human rights violations, conducting serious investigations when rights violations were suspected, imposing sanctions, and providing reparations to the victims. As a result of the crystallization of these obligations, actual methodology was able to develop.
Through the study of processes that were working in countries like Honduras, Chile, and South Africa, the international community identified some of the core elements of a system that can provide redress to abused peoples. Transitional justice includes the establishment of a truth commission to help expose human rights violations and the criminal prosecution of the people responsible. It also includes reparations for the victims that provide monetary assistance and apologies, reform of the military, police, and the judiciary, and the public memorialization of the tragedy.
Political upheaval is becoming more common around the world, and the doctrine of transitional justice has increased in importance in international law. The process has been endorsed by the European Court of Human Rights and has formed the basis of decisions reached by the U.N. Human Rights Committee. Transitional justice is not static, however, and continues to evolve as it is applied to changing circumstances.