Transitional Justice
Transitional Justice (TJ) in times of transformation measures the consolidation of political institutions that interact in an up-and-downturn spiral over a more extended period.
TJ measures can guide the consolidation process, but the quality of democratic consolidation depends on whether these measures are applied inclusively. The more inclusive, the more democratic the regime, the more exclusive, the more regime consolidation tends towards authoritarianism. The extent to which they do that depends on the interaction among political, civic or international actors and their respective institutions, i.e. parliaments, CSOs or international organizations.
TJ measures contribute to democratic consolidation when there is a bottom-up and top-down approach aiming towards the same consolidation target, as seen in the case of West Germany and Spain after a generation and more. TJ measures contribute to authoritarian regime consolidation if governments exclusively use them in a top-down approach and thus misuse them to manifest certain political or ideological power and status; and when civil society is excluded from using them to create their narrative of justice of the past. This leads to a process of Transitology and subsequently a transition and transformation of political regimes.
Read further an excerpt from my updated and modified version of‘ Introduction to Transitional Justice‘ from 2024
| Previous version published in: ‚An introduction to Transitional Justice‘ p.1-28 in Olivera Simic (ed.): Introduction to Transitional Justice, Routledge, 2nd edition 2020 |  |
‚Introduction to Transitional Justice‚
Anja Mihr, 2024
Transitional Justice (TJ) is a concept and process encompassing several legal, political, historical, and cultural instruments and mechanisms that can strengthen, weaken, enhance, or accelerate political regime change and consolidation processes. Therefore, TJ measures such as truth commissions, trials, memorials, compensations, reparations, security sector reforms, vetting, lustration, or amnesties can foster and, at the same time, hamper successful transition or reconciliation processes. TJ measures are generally applied after crises, armed conflicts, wars, political violence, and any post-conflict scenarios requiring a thorough vetting and lustration process to learn from past mistakes, avoid recurrence, change institutional procedures, and address the needs of future generations.
Reconciliation can result from a TJ and is generally understood as a peaceful and trustworthy coexistence among groups and individuals after a conflict or dictatorship. It can take at least one generation to provide the grounds for a new social order in a once-divided society.
The United Nations (UN) refers to TJ measures as a set of judicial and non-judicial instruments and mechanisms such as trials, truth commissions, vetting and lustration procedures, memorials, reparations, restitutions, or compensations, and even amnesty and rehabilitation laws, to redress the legacies of massive human rights abuses during or after the war, forceful occupation, dictatorships, corrupted regimes other violent and suppressive conflicts and wrongdoings. These measures can lead to various institutional reforms, such as the security sector and legal reforms, strengthening the rule of law and building democratic institutions.
TJ measures facilitate civil or political initiatives after regime change and during the transition and transformation of political regimes and societies. In the hands of political and civil actors, such as governments, victim associations, and cultural and aid organizations, these initiatives can lead to atonement, reconciliation, and even democratization if all actors and interest groups are included. Hence, only an inclusive TJ process can lead to nonrecurrence and a resilient and democratic society. Suppose the TJ process is inclusive and open to addressing all sides of the wrongful doings. In that case, no matter how painful the process is, the outcome can be a peaceful, reconciled society that begins trusting each other again. But suppose TJ measures are applied exclusively and politically biased, misused for the political purposes of one (winner) party aiming to protect victimizers from being held accountable. In that case, the outcome is likely mistrust by victims, leading to conspiracies and turmoil. In that case, the conflict-torn society remains divided along the lines of former opponents and will turn back to authoritarian rulership.
Fueling the bias and mistrust of the past will lead to a vicious cycle of suppression and unrest. Whatever measures the government or civil society actors choose during transition processes ought to be non-biased, and the best way to achieve that is to apply international human rights standards, laws, and obligations to all measures. The non-biased TJ process will again positively impact democratic institution-building.
Consequently, the array of TJ measures and its actors are extensive. Today, apart from political actors and CSOs, even private enterprises and companies issue apologies and pay compensations for enslaved workers during wartime or suppression, such as after WWII in Europe. Executive directors atone for disappeared labor unionists during the Apartheid regime in South Africa and during military junta regimes in Latin America in the 1990s. Oil companies set up funds for victims of oil spills, and governments have applied TJ measures to deal with the consequences of the COVID-19 pandemic. In post-war and violent scenarios, TJ measures can include individuals or war criminals being tried by international, hybrid, or national tribunals, as well as national or local courts during and after an armed conflict or times of crisis.
Trials to condone perpetrators and to measure the severity of crimes against humanity after a war or genocide have become a customary practice in modern times, the TJ processes. Most recently, we have seen this global initiative to establish an International Tribunal on the war of aggression caused by Russia against Ukraine in 2022. In 2023, the European Union (EU) initiated the International Centre for the Prosecution of the Crime of Aggression against Ukraine and subsequent tribunals to fill in gaps in prosecution from the International Criminal Court (ICC). Neither the Russian Federation nor Ukraine is a member, so the ICC has no jurisdiction over their territory. Yet, the ICC has issued several arrest warrants against the Russian military and President Putin. The Rome Statute and the ICC are thus TJ instruments and mechanisms simultaneously procedural, interpersonal, and informational. They can lead to distributive and restorative justice or establishing the rule of law through condemnation of war criminals and reparations and compensations for victims and survivors. Victims of abuse or refugees may receive reparations or compensation according to the wrongdoings they had to endure during suppression, war, or dictatorships.
Memorials, for example, are erected to acknowledge these wrongdoings and atrocities and to serve as a warning to future generations. An example is the 1999 established Badhya Bhumi Smriti Soudha Memorial in Bengali, Bangladesh, built on the site of assassinated opposition leaders during the Liberation War in 1971. At the same time, this memorial has triggered public debates about a newly established national holiday in Bangladesh, the Martyred Intellectuals Day each year on December 14. Scientific research, publicity, legal reforms, and lustration processes and compensations for survivors and victims in the country have followed.
Lustration and vetting procedures, instead, aim to shed light on who was responsible and to what extent during times of injustice and suppression. However, only a few countries are financially capable and politically willing to issue such procedures, such as post-communist East Germany (GDR) in 1991. Apart from the size of the population, one reason is that proper and inclusive lustration processes are costly and take decades to conduct. In the case of the former GDR, hundreds of thousands of citizens were vetted and attested whether they collaborated with the communist regime or not, and depending on the results of the lustration process, were allowed or denied running for political office (Mihr, 2017).
Thus, TJ measures are multiple and range from memorials to trials, from truth commissions to vetting procedures, and from apologies to amnesty laws. A mixed set of measures has a more substantial effect and impact; if a mix of different actors apply and implement them, they have an even more significant impact. Governments, businesses, and civil actors use them to delegitimize the past regime and to legitimize the new, ideally democratic, regime. These measures trigger reforms and change to the extent the actors involved want them to affect the transition and transformation periods. Hanah Arendt highlighted in ‘The Human Condition’ (1958) that society can forgive, reconcile, and build a democratic political system if the current regime deals with its predecessor’s wrongful past holistically and inclusively. Otherwise, it will return to the same or similar authoritarian regime as before. This is what TJ measures aim to achieve.
Nevertheless, even though trials of perpetrator and victim compensation are often at the center of public attention, TJ is, in fact, more forward than backward-looking. An inclusive TJ process, in which all sides of the previous conflict are involved, drives regime consolidation in both post-conflict and transition countries. Such an inclusive process aims to demystify and delegitimize the past and its wrongdoers and, by this, legitimize and strengthen future and present political systems. If this process is exclusive, biased, and intensely politicized, it can lead to distrust, rebellion, and new authoritarianism. Some mechanisms aim to reconcile societies and their former opposing parties, others focus more on building trust in institutions, and others seek to acknowledge and remember past injustice through memorials, compensations, or apologies. Therefore, TJ can – but does not automatically have to – contribute to (re-)building trust in institutions and democracy.
Countries that took a rather inclusive and ongoing approach to addressing the needs of future generations, often after years of painful internal debates, such as Argentina, Australia, Canada, Japan, South Korea, or Germany, have proven that TJ is effective in finding ways of dealing with societal divides and unrest in present times. Starting from symbolic acts of returning war or colonial artifacts to those violently deprived, launching compensation for then very senior victims and reparation funds and – often belated – trials against perpetrators, these societies benefit from the rising societal trust or example in the judiciary in political parties or local administration.
Subsequently, TJ measures contribute to regime and societal change. Regime consolidation follows and is best described as a mutually reinforcing process between TJ measures and democratic institutions. Court judgments are often followed by vetting and lustration processes or compensations for victims, and at the same time, disqualify former perpetrators from taking political office in the new democratic regime. This mutual reinforcement between measures and institutions can strengthen democratic institution-building by enhancing the quality and, thus, the effectiveness of (democratic) institutions. TJ is leveraging the responsiveness of the government vis-à-vis victim groups, which can, in return, increase their trust in the judiciary and, by this, strengthen the rule of law. Hence, TJ mutually reinforces the regime when its measures are applied. If that regime is authoritarian, TJ measures can strengthen autocratic, mostly exclusive practices and governments.
An inclusive TJ process aims to include all parties or members involved in the previous conflict or dictatorship – no matter the sides they took -be they victims, bystanders, or perpetrators, regardless of their political or social status and religious or ethnic background. This process is more painful because each side must listen to the other side’s narrative and ‘truth.’ But by doing this, it allows blame and responsibilities to be put on all sides, not just those who lost the preceding war or the violent conflict, but also on those who ‘won’ the conflict, as they may also be involved in war crimes or atrocious acts.
It is hardly ever possible to be fully inclusive. Because victims and perpetrators cannot easily overcome their differences. Instead, hate or grief for revenge dominates the post-conflict discourse, often leading to the recurrence of violent acts. TJ is there to break that vicious cycle and is vital to keep the door open for future generations who might want to talk to one another even though their parents and grandparents have not.
Transitional Justice Measures
Transitional Justice measures thus range from the simple acknowledgment of previous wrongdoings, that is, through history or truth commissions, apologies, or the establishment of memorials and memorial days. TJ can include war crime tribunals and life-long sentences of perpetrators, as seen in the sentences of the International Tribunals for former Yugoslavia from 1993-2017 (ICTY) and the International Criminal Tribunal on Rwanda from 1994- 2015 (ICTR) or the Extraordinary Chambers in the Courts of Cambodia (ECCC) from 2001-2022. However, acknowledgment can be carried out by governments responding to public debates, returning stolen artifacts during colonial or war occupation, incentivizing civil society to produce films and documentaries, and publishing literature or novels about the past. Introducing past wrongdoings and historical facts in school textbooks, conducting scientific research, allowing researchers access to archives, media involvement, and naming victims and alleged perpetrators are just some of the mechanisms that can lead to an inclusive process. The outcomes of such activities can be novels, films, theater, radio features, blogs, YouTube clips, Telegram and Instagram feed posts, or any individually driven action that leverages inclusive public debates about the past.
Unlike acknowledgment, restorative measures are often therapeutic. They can be summarized as acts that involve reparation, restitution, rehabilitation, or compensation for victims and survivors of expropriation, eviction, imprisonment, or illegal killings. Today, digital memories (big data) and technologies contribute to this. They can create virtual twins that enable true-to-life interactions with virtual persons, helping to identify oneself with victims and victimizers to better understand past violent and unjust situations. Victims and witnesses of crimes use extended reality, which simultaneously challenges the truth-seeking process in post-conflict societies. The ‘digital turn’ in TJ, as Kostovicova et al. (2022) call it, provides unseen opportunities for collecting unlimited data. At the same time, it poses the risk of ‘data oversize,’ as I call it, namely, pushing to the limits our human capability to analyze the vast amount of data and differentiate between fake and often AI-generated data and accurate data. Online platforms, such as Telegram, Instagram, TikTok, X, or Facebook, permit data collection on an ever-faster level of precision and granularity, often allowing for no further fact-checking. The flood of data transfer, testimonials, and images impacts our perceptions and ethical judgment, which is pivotal in separating victims from victimizers and vice-versa at any time.
However, AI and digital TJ also open opportunities to understand a conflict-torn society. It creates virtual memorials, AI-generated victim stories or victimizers‘ confessions, and even mock trials, creating scenarios that can explain a situation. At the same time, it poses dilemmas when dealing with the legacy of large-scale and systemic atrocity, false AI-generated victim stories, and falsely turning bystanders into victimizers. To fact-check every image taken during a year or more prolonged war seems like an endless endeavor, even with the best AI software. Hence, powerful and even AI-generated images can intensify aspects or narratives of the past and neglect others that are not obvious. Atrocities that are well documented through visual means are more likely to be used in digital TJ than those hidden wrongdoings or victims that do not have a voice or story to tell. Those images or narratives that qualify to be turned into (false) virtual twins can easily be accessed through open-access data that becomes part of a legal investigation in court and academic research, as well as even the reconciliation process, which can bias the whole TJ process.
Because there is no ‘AI oversight’ by an independent global cyber public broadcasting or media committee, AI-generated images and data can be misused by single groups, warlords and parties, oligarchs, or influencers representing their personal views on the past. This can single out and ‘weaponize’ memories, facts, events, and TJ measures to trigger resentment, new conflicts, and even civil war. An example of the role of social media and AI-generated data can be seen in the failed Ethiopian TJ process after 1991, 2005, and 2020, respectively, as described by Metekia, when old conflicting parties took up the weapons again, mainly due to false acclamations on social media and virtual twins generating narratives about the other side, that bared of any evidence and fact-checking (Metekia, 2023, pp. 72-73). Similarly, since 1990, social media has overtaken the public discourse in post-communist Albania’s TJ process. It has sensationalized past wrongdoings and victimizers in ‘emotional stories’ instead of deconstructing them. Social media reinforces single narratives and neither puts perpetrators nor victims in a historical context. Instead, historical speculations, phony documents, and context-free information have become the norm, not the exception, and authentic stories, documentaries, or debates on public television are rare (Godole, 2023, p. 255). During the Israel-Palestine-Lebanon war since 2023, AI-generated data and images about victims and victimizers have been the primary source of resentment that triggered public support on all sides of the political spectrum as well as globally to escalate the war.
Where facts about the past become contested, so does TJ. The new political regimes do not see incentives to deal with the past. This leads to corruption and anti-transparent measures, manifesting authoritarian traditions, rules, and values. Belarus, Russia, Azerbaijan, Turkmenistan, and Tajikistan are prominent examples in the post-Soviet space. In the Middle East, it is Syria and Egypt or in South America, Brazil, and Venezuela; and in Southeast Asia, it is Myanmar; or in Africa, it is Ethiopia, Rwanda, Kenya, Burkina Faso, or Burundi; they all are struggling with the AI-generated ‘truth’ and fact-finding missions on the ground. Courts are overwhelmed with differentiating between AI-generated evidence and accurate forensics. The expulsion of international organizations and the lack of free civil society and media hampers the fact-finding mission and leaves only social media as sources of information about past atrocities.
However, TJ measures have their most decisive impact in the first ten years of the transition process, and trustworthy evidence, forensics, and narrative are crucial. During that period, political actors aimed to use and misuse TJ measures for tactical reasons, such as to make concessions to international donors and victim groups or as part of new foreign policy. The TJ database at Harvard University aims to support fact-checking and allow for a systematic comparison of TJ processes and the impact of various measures on (democratic) regime development (Dancy/ Sikkink, 2023).
Alongside substantive and financial compensation, restorative measures include ways and means of establishing working relationships between former combatants, victims, and victimizers, or those colonized and former colonial powers. Quota systems, affirmative actions, reintegration programs for political prisoners restoring and maintaining memorials, or the public exhumation of mass graves aim to restore what was once destroyed and condemned unlawfully. Although restorative and restitutive measures have been proven effective regarding victim satisfaction, they are a small part of the processes. They become more effective with debates about contemporary legal reforms or, for example, in the context of ‘cancel culture,’ inclusive policies, identity politics, or post-colonial debates.
This has already been noted in Rule 150 of the Hague Convention from 1907, the Protocols on Reparations from 1929, and the Geneva Convention Protocols from 1949. These rules are today’s customary international law, implying that a state must make full reparations for the injury caused by the internationally recognized wrongful act. This measure focuses on victims but with an apparent inclination towards the present and future, for example, the restoration of Armenian churches in Turkey after WWI, Buddhist temples in Cambodia after the civil war of the Khmer Rouge, and synagogues in Germany after WWII.
Most prominent in the TJ debate are criminal justice measures such as trials, tribunals, or vetting procedures firmly enshrined in international human rights, public, criminal, and humanitarian law. Criminal justice focuses on perpetrators, civil servants, and public officers, often followed by more public vetting and lustration procedures. Many international covenants and treaties help lay down the legal framework for regional or case and country-specific tribunals or domestic court systems after regime change and during the transition period. In a post-violent and autocratic regime, a new legal system and constitutions based on international law can be the best preventive measure to avoid the repetition of past wrongdoings. Paired with TJ, this combination can lead to a fruitful democratization process.
TJ principles: Inclusivity versus Exclusivity
Since 2002, the legal practice of the International Criminal Court (ICC) and the Rome Statute of 1998 have added significantly to domestic and international democratization, emphasizing individual accountability as equal to state accountability. Against this backdrop, retributive justice has incorporated a retroactive clause, namely that perpetrators should be charged under the laws of the past regime and international customary human rights and humanitarian law to set the benchmarks against which alleged perpetrators are trialed to avoid a culture of impunity.
However, the opposite meets reality in almost any given jus post-bellum or in-bellum situation. Claiming international customary law as ‘unlawful’ and non-applicable, using it in biased ways, and silencing the past through de facto amnesty laws or so-called rehabilitation laws are the most common measures governments in transition apply when dealing with the past. Inclusivity is not the primary intention at that time. ‘Silence pacts’ are the norm instead. They are agreements among old and new political elites and governments shortly before and after transitioning from one regime to another. Out of fear of old alliances and friendships, avoiding clashes between old and new political elites, they grant amnesty to wrongdoers and war criminals to silence public debates and victims’ needs. Impunity, however, can trigger the vicious cycle of vengeance, violence, and the return to authoritarian political practice and, subsequently, autocratic regimes. Warlords, mercenaries, paramilitaries, the military, and policymakers grant themselves amnesty before the new regime occurs. Impunity-related rehabilitation measures, laws, and actions to wholly or partly pardon, reeducate, and reintegrate victimizers in the state sector, particularly in the security sector and public administration. In that case, the recurrence of inequality, injustice, and violence is then just around the corner. This was the case in the post-Junta regime of Argentina or post-Franco Spain in the 1970s and 1980s, or more contemporary terms in the post-Soviet Russian Federation in the 1990s until now. It led to military coups and the sometimes-successful renewal of authoritarian regimes. Later, this was the case in Russia, but also in Hungary or Myanmar in 2010, when the third wave of autocratization started (Lührmann & Lindberg, 2019, pp. 1095–1113). This wave, which includes many post-communist countries in Eurasia, is closely intertwined with the failed and exclusive TJ process governments in Moscow, Budapest, and Rangoon applied during the transition period.
Some countries confronted severe drawbacks and backsliding to their democratization processes, which were always linked to the unwillingness to conduct inclusive TJ. Pacts of silence were among the most prominent measures of exclusivity. The Spanish amnesty laws of 1977, for example, during the post-Franco regime, exempted all those who had been politically active before the regime change, including Franquistas, and thus protected the old Franco elite from facing litigation. It took until the 2000s to reconsider some of these laws and issue TJ measures. In the 1980s, in many Latin American countries in transition, former military elites ‘issued themselves’ extensive amnesty laws before passing power to a new civil and democratic government to avoid being held accountable for their past wrongdoings. Amnesties imply that perpetrators surrender and may be seen as having committed crimes without (yet) being punished. It also allows perpetrators to testify before commissions of inquiry without fearing long-term prison sentences. Other ways of issuing de facto amnesties are ‘reintegration’ and ‘rehabilitation’ laws, such as in post-war Germany after 1949, allowing former NSDAP members to enter political offices. In many post-communist countries in Central and Eastern Europe after 1990, to reintegrate or rehabilitate, for example, lawyers and technocrats of the previous regime, by reinstating them in new offices with new titles.
Any TJ process is about balancing the demand for truth and justice on the one side and the demand for security and adequate condemnation of perpetrators on the other to meet the needs of future generations for peace, development, and prosperity. This is particularly difficult after many years of war when societies are divided into many fractions and if traditional and patriarchal power holders have very little interest in the well-being of future generations. Hate, mistrust, conspiracies, and the desire for vengeance prevail and are used to trigger the next conflict. Although the main aim of TJ is to avoid the recurrence of injustice and to avoid vengeance and winners’ justice, Realpolitik of all kinds is often at odds with TJ.
Whereas TJ is a process with medium to long-term prospects, Realpolitik is the citizens‘ immediate and everyday concerns. When using TJ measures as political tools to trigger regime change and consolidations, executive and legislative powers may believe that responding to victims‘ or victimizers’ claims and demands through commissions, trials, memorials, or vetting procedures will be directly relevant to the present politics. When Ruti Teitel and Priscilla Hayner analyzed transition periods in the 1980s and 1990s in Latin America, Africa, and the Balkans, they concluded that TJ processes might have relevance for the social and political stability of independent judiciary or stronger civil society, but not necessarily for societal reconciliation. Hayner highlights that truth commissions are essential for establishing the accountability mechanism of young democracies; and Minow observed that historical memory, narratives, memorials, recognition, truth commissions, and forgiveness are somewhat interlinked when re-establishing societal trust. Thus, TJ measures can only contribute to pathways of regime consolidation, whether democratic or autocratic, remain open. Either way, the impact of TJ depends on how actors in the transition process apply these measures, inclusively or exclusively. One of the most profound works on the possible effect of TJ on democracies is by James Gibson, who reviews the Truth and Reconciliation Commission (TRC) and the TJ process in South Africa in the 1990s. He emphasizes that truth and evidence-based facts about the past contribute to reconciliation if blame is placed on all sides, inclusively.
In my comparative long-term study of TJ and regime consolidation in Europe after WWII and the end of the Cold War in 1990, I illustrate the level of regime building and consolidation. I found that post-conflict regimes turn back into autocracies or become more democratic, depending on how inclusive or exclusive they apply TJ and their mix of measures and sequence. Realpolitik goes the other way, and new leaders practice far too often exclusive winners‘ justice. They protect their kin, families, and friends, exempting them from trials and prosecution. Newly elected governments and parliamentarians promoted loyal party members and former combatants, even though they had been deeply involved in war crimes, atrocities, and corruption – leading to mistrust in the new regime from the side of victims and bystanders.
Categories of transitional justice measures (samples)
| Acknowledgement | Restoration | Criminal Justice | Amnesties |
| History commissions Truth commissions Apologies (Digital) Memorials Public debates Film Literature Schoolbooks Scientific research open archives (Social) Media involvement Symbolic naming of victims and perpetrators | Reparation Restitution Compensation for past injustice Quota and affirmative action Restoration of historical sites Exhumation of mass graves | Application of customary international human rights and humanitarian law Criminal justice Tribunals and ad hoc tribunals Trials Security system reform Condemnation or probation Vetting and lustrations | Blanket or conditional amnesties, Silence pacts, Rehabilitation programs |
The highest and most long-term impact of these TJ measures is inter-generational. The most immediate effect is trials because they condemn perpetrators and compensate victims for alleviating their economic or social decline. Generally speaking, TJ measures only show their positive or negative impact 20 or more years after regime change. Suppose they are applied exclusively. In that case, countries often turn back into autocracies, as illustrated by the example of autocratization in and around 2010 in the post-communist countries in Eastern Europe and Central Asia (Lührmann & Lindberg, 2019). Therefore, one generation (20+ years) after regime change generally marks a turning point. The ‘old and unatoned autocratic way of rulership’ is showing its true face, as seen in the Stalinist turn of Russia in and around 2010, leading to a renewal of the imperial approach and, subsequently, of a war of aggression against Ukraine since 2014.
Suppose the TJ process is taken inclusively instead. In that case, the new generation of (democratically) trained administrators and technocrats replaces the former judges, politicians, or military, allowing a free civil society to grow and build up enough capacity to adapt to complex, challenging, or stressful situations. This society can deal with political adversity, war trauma, economic crisis, pandemics, or setbacks while maintaining or regaining a sense of well-being; in short, the society becomes resilient. It is not surprising that in post-war and post-autocratic countries, after approximately 25 years, a new generation goes into the streets or makes claims for more transparency about past abuses and atrocities and for more democracy, as seen, for example, in post-soviet-colored revolutions in Central Asia or the Caucasus since 2005. Society uses TJ to mature, take responsibility, and move beyond the paternalistic, autocratic structure. Not all succeed and face new suppressive regimes, as has been the case in Belarus since 2018. On the other hand, we see in post-autocratic societies, such as South Korea, Germany, or Argentina, that after 20+ years of regime transition, with a new generation entering the political and technocratic arena, these societies become morally capable of empathetically facing their past and using atrocities and wrongdoing of that period as a constant reminder to legitimize the new and different political regime.
Geopolitics & Regional differences
Since around 2000, almost half of all countries in the world have applied some measures that qualify as TJ measures, which underlines the current trend to correlate these measures with regime change worldwide, ranging from Albania, Argentina, Bangladesh, Bosnia-Herzegovina, Cambodia, Canada to Estonia, the Fiji Islands, Germany, Rwanda, Sierra Leona, South Africa, South Korea to Tunisia, and Zambia. Not all of these countries are today democracies – far from it – but all had some TJ measures for the last three decades or longer. Often, they lack applying international law inclusively and a mix of measures and a sequence over generations. In Southeast Asian countries and Latin America, many private initiatives by CSOs and international donors established memorials and fostered reconciliation programs. The embracement of these activities by governments, for example, in Myanmar, the Philippines, or Bangladesh, to set up trials or systematic vetting and lustration processes dealing with a corrupt military junta elite and violent persecution of minorities, is far from being seen until the present.
On the crossroads between Europe and Asia, in Turkey, for example, TJ measures were seen as an external imposition of a small elite celebrating the revival of international criminal law to solve long-standing and perpetuating conflicts destabilizing democratic efforts in the 1990s. In a well-mannered attempt, TJ measures were not only applied to the Kurdish minority, who had suffered decades of war and suppression by the Turkish military but also to help reestablish foreign trade and political relationships with Armenia. These efforts ended around 2010 when Turkey slid back into a full-fledged authoritarian regime, and the third wave of autocratization began. The same is true for post-Soviet Central Asian countries, in which the old communist elite became the new elite and did anything in their power to protect their kin by avoiding a TJ process. It was around 2010 that it became evident that if TJ is applied exclusively, it can contribute to the reestablishment of autocracies, seen most prominently in Russia, Turkey, and Rwanda.
On the African continent, the AU and its various treaties, as well as the incentives given by the African court, the Truth and Reconciliation Commission in South Africa, the Rwanda Tribunal, and the Special Court for Sierra Leone, due to their exclusivity, had a (incomplete) spillover effect on other TJ processes elsewhere on the continent. As for Latin and Central America, at the same time, the Inter-American Court in Costa Rica has proven through its judgments and decisions since the 1990s that it can interfere in promoting social justice through TJ processes to repair unlawful land grabbing, pay compensations for victims of torture and forensic truth finding after waves of disappearances, such as in Brazil, Chile or Guatemala. (Hoeres & Knabe: 2023). The court has since been a motor to foster inclusivity in domestic TJ processes, leading to a new term in TJ, namely ‘transformative justice’ and societal resilience to resist the recurrence of breaches of human rights and backsliding of democracy.
In Europe, there is a normative legal and political framework with different international organisations that have framed TJ closely with democratic institution building throughout the continent. That framework comprises the EU, the Council of Europe (CoE), and the Organization for Security and Cooperation in Europe (OSCE). The OSCE has more influence in post-communist Eastern and Central European countries. Its politically binding status, mandates, treaties, and policies are seen as weak and ‘toothless’ and used as a reference point to conduct domestic trials on former elites in post-communist or post-war Balkan countries (Hoeres & Knabe: 2023). The EU, particularly the European External Action Service (EEAS), is today one of TJ measures‘ strongest promoters and donors worldwide, including its annual contribution to the ICC, the AU, and other Council of Europe and OSCE activities, and as such the initiator of the Special Tribunal on the War of Aggression against Ukraine.
Impact of Transitional Justice
A widely debated aspect of TJ is its effect and impact on democratic regime consolidation. As illustrated earlier in this introductory chapter, there is no clear evidence of a linear causal effect between TJ measures and democracy. There is, however, a strong correlation and mutually reinforcing proof between the level of inclusivity of TJ measures and the quality of democracy. TJ measures can leverage that momentum to help build democratic institutions and change people’s attitudes and behaviors (Mihr, 2019). Elazar Barkan stresses that only with a joint narrative about the past will societies overcome historical injustices and join for the same path into the future. Without a minimum consensus of what happened in the past, no trial, no apology, no memorial, and no vetting process could be installed effectively. Thus, there needs to be a minimal consensus that something ‘went wrong’ in the past to apply TJ measures, helping to delegitimise the past unjust regime or legitimise the future government. This familiar narrative (for some, it is ‘truth’) shapes new pluralistic identities in a society that help to ‘democratise’ and thus share an understanding of history. In line with Barkan, a narrow, biased, or exclusive knowledge of historical facts has often led to enduring injustice and, as we have seen in post-Soviet Russia, where the new political elite started to glorify the atrocities of the Stalin era. The same happened in Cambodia, where decades after the men-slaughtering Pol Pot regime, the wrongdoings of the past were relativist and often even justified.
Spinner-Halev argues that history commissions, trials, or vetting procedures cannot effectively work, let alone have any impact if the wrongful past remains untouched or justified. Instead, a culture of impunity and oblivion is established. ‘White spots’ in the history books or public memory can easily lead to new societal myths and even conspiracies, repeating persecution, discrimination, and acts of vengeance and arbitrary justice (Mannergren et al, 2024). New outbreaks of violence, mutual accusations, and even wars, as seen in the long-standing conflicts in Israel and Palestine, are the results. As Hazan accentuates, without a minimum agreement from all sides that ‘something went wrong’ in the past, and different sides share responsibility for these wrongdoings, a TJ process should not even be considered, as it would be a waste of time and money – the impact will be zero or the opposite of what is anticipated, namely the return to an authoritarian regime. Consequently, those actors who dominate the historical narratives or determine the facts of the past, often expressed by the number of deaths and casualties, can easily manipulate, let alone use AI tools, and use them for further acts of vengeance and crimes.
In the end, the rapidly developing field of TJ research has put forward multiple-country case studies with examples of best practices and processes. Not surprisingly, some of the significant publications in this area are those on societal transition, on the performance of tribunals and hybrid courts, victimization and reconstruction, truth and reconciliation commissions, the impact of apologies or amnesty and impunity, the importance of historical memory and justice, reparations and reconciliation processes in general, as well as amnesties. Most of these studies conclude in the same direction, namely that whatever TJ incentives and measures help to reach a new political order and to overcome old, traditional, violent, and ineffective ways of governance are seen as a positive contribution to it. If there is no common understanding that the past regime needs to be overcome, there will be no regime change and no consolidation of a new government, and the impact of any TJ measures will be nil. There will be no common narrative about the past and no public need to reconcile conflict-torn societies.
The installment of an independent judiciary and its adherence to international law is pivotal for regime consolidation. The way of justice thus theorizes the role of the state and/or comparable local, domestic, and global governance institutions that encompass a proper democratic process. However, Campbell highlights that settling political disagreements through court-centered disputes alone would fail to strengthen formal and administrative justice. Instead, a mix of TJ measures is needed to reach the anticipated trust, and it can take years if not decades.
More authors argue along the same lines; for example, Nevin T. Aiken highlights that TJ measures need to be associated with real and tangible change in the socio-economic conditions of former antagonists and thus social justice, for example, through compensations or reparations, not only criminal justice. Therefore, socioeconomic and legislative reforms go hand in hand. Particularly, reparations are determined to reach out to citizens and victims through compensation. Aiken uses the example of South Africa after the end of the Apartheid regime in the 1990s, where reparation and other socio-economic benefits related to past injustice were offered as one direct way to engage (new) governmental institutions with citizens. By doing so, they acknowledged past wrongdoings and, at the same time, delegitimised the hateful and racist regime. Reparations were closely bound up with questions of justice and a way to counterbalance the ‘justice deficit’ caused by granting conditional amnesties to perpetrators. The latter resulted from a negotiated deal between state institutions and victimisers to convince them to testify at least ‘something’ in front of the Truth and Reconciliation Commissions (TRC), in the late 1990s.
Nevertheless, too many or too few TJ measures, too soon or too late, may also spoil the effective transition process and reconciliation. The sequence and timing matter, too. Balancing interest and consequences among trials, apologies, memorials, or reparation takes political skills. The constant urge for more trials, compensations, reparations, truth and atonements, vetting, and lustrations of past perpetrators can put much pressure on both old and new elites, victimizer and victims alike. It can encourage spoilers to hamper the successful transition to democracy or better governance. Domestic and international stakeholders involved in the transition must balance and eventually constrain public interests to reach an inclusive and pluralistic decision-making process. TJ measures must be seen as tools and catalysts to channel public and political interest and chosen prudently. Martha Minow concluded in one of the first books on TJ in 1988, the importance of balancing TJ measures and states that ‘truth and justice are not the same’ but are often wrongfully seen as such. Yet, four decades later, this challenge remains the same.
Transitology: TJ in Transition and Transformation periods
It is not a coincidence that the the concept of TJ and its measures such as trials, reconciliation, resitution etc emerged during the second wave of democratization after WWII from 1945-1965 and later during the third wave of democratization, 1973- 1990s, which is also branded as periods of Transitology by Dankwart Rustow’s concept in 1970. Transitology is, in a narrow sense, the institutional regime change towards democracy, and after all, it is a relatively short period of a maximum of ten years, that is to say two legislative periods, before democratic consolidation can begin.
What remains challenging for all political parties, stakeholders, and CSOs driving the transition in democratic transition periods is maintaining the independence and transparency of legislative, executive, and judicial powers. This is where trails, apologies, memorials, textbook reforms, compensations, reparations, and other forms of ‚reckoning with the past‘ can help the new and weak democratic institutions not to return to the transparent, corrupt ways of governance of the past. TJ interrupts the vicious cycle of recurrence from one authoritarian regime to another. Its measures can facilitate the slow but steady democratization process and later consolidate democratic institutions, by maintaining them transparent, accountable and participatory. TJ measures and democratic institutions are thus mutually reinforcing themselves (Mihr, 2019)
Rustow’s term was another attempt to explain why societies opt for a democratic mode of governance after periods of great injustice, war, violence, dictatorships, and corrupt oligarchies. Since Plato and Aristotle, Marx and Gramsci, political theorists have sought to explain why transition processes fail and why patterns of authority and privilege survive despite best efforts. They have come to the same conclusion: tyranny is inevitable if civil society and the population do not continue their struggle for freedom, equality, fairness, justice, and solidarity. If discouraged by lousy governance and violence, they fall into the trap of indifference that populists harvest to turn the country back into autocracy.
In his book Third Wave of Democratization (1991), Samuel Huntington added a piece to the transitology puzzle to determine what makes countries democratize—looking closer at the democratization process in Greece, Portugal, and Spain in the 1970s. According to him, no region or modern society has been entirely immune from the illusions and promises of ‘democracy’ and that it can resolve problems that authoritarian modes of governance cannot since the American and French Revolutions in the 1780s. These waves have always spilled over because they promise an alternative to tyranny, injustice, inequality, corruption, and nepotism. Once it starts, thousands of people risk and sacrifice their lives to strive for more democracy, not less. Over the past decades, we have seen successful and unsuccessful attempts to do so during the Arab Spring from 2010 to 2012, and in Ukraine since 2014. However, without the conditions Rustow had observed in the previous successful case, there seems to be no alternative path to democracy.
In a narrower sense, transitology and transition is the normative and institutional change from one regime type to another. According to democratic legislative periods, transition is five to ten years after a regime’s end (two legislative terms). Transformation is a regime’s medium and long-term alteration and consolidation in political, societal, and socio-economic terms. Transformation to consolidate, for example, a new democracy, can take decades, over a generation or more. During that period, TJ has the most impact, namely strengthening and consolidating a (new) political culture, behavior, and institutional performance, such as the judiciary and civil society.
In both periods, the mediating and supporting effect of international organizations and mechanisms such as the UN, the ICC, the AU, OAS, or the EU, or transnational NGOs, relief and aid organizations can work as incentives both in legal and financial terms to continue the slippery road of TJ. For example, Eurasia’s new hegemon, China, uses the Belt and Road Initiative (BRI) economic power and depth dependencies to consolidate autocracies by explicitly avoiding TJ measures even though 80% of the BRI investments are done in conflict-torn and post-autocratic societies. China is reintroducing a century-old ‚Tribute system‘ to consolidate loyalty of countries that previously belonged to its empires, by grinding them into security, economic development, and modest prosperity in exchange for deep dependency and political loyalty. There is also Russia’s vision of the Russky Mir (Russian World), claiming to change the world according to an inclusive Russian ethnical hegemonic state-centered system, denying any wrongdoings of Russian colonizers and the Soviet Empire in the past in the first place. China and Russia instead glorify Mao’s and Stalin’s atrocities and crimes against humanity, using memorial sides to highlight their exclusive narrative of the past, never publicly acknowledging wrongdoings or compensating victims.
Despite this, interestingly enough, most countries in transition respond to public pressure and opt for a liberal democratic model. However, not all succeeded in building democratic societies because they failed to channel that public catharsis through TJ measures to strengthen democratic institutions. The failure of an exclusive process was last seen in Tunisia in 2021 when the country’s president resumed overall power and declared the end of TJ and democracy. The same was the case in other post-Arab Spring countries, such as Libya, Egypt, or Syria, which turned into war, military junta regimes, and today are exclusively autocratic regimes -even though they had TJ aspirations. Governmental leaders, even though publicly elected, were unable or unwilling to conduct an inclusive TJ process but were also challenged by radical, primarily Islamic and anti-democratic movements who had no interest in reconciliation. For these countries, it backfired that they did not use the first years of public catharsis to build resilient civil and political institutions using TJ measures that would have stood firm against anti-democratic movements.
Today’s ways ahead for Transitional Justice
TJ embraces instruments and mechanisms to shape and impact a medium—and long-term transformation process, both societal and institutional. By applying political, legal, or historical measures and methods, different societal and governmental actors delegitimize the past regime and legitimize the new regime. Whether this new regime is democratic depends on how inclusive and international law-abiding the TJ process is conducted. This new regime’s or government’s primary purpose is to tackle the desires and needs of future generations and, therefore, survivors of past atrocities for peace, fair and accessible development, and prosperity.
TJ complements other socio-economic tools and measures, such as laws, political practices, or cultural habits. Without those, it cannot alone change society or end the vicious cycle. Although TJ measures are nonpartisan by nature, they depend on the political will and ambition of the actors involved in the TJ process and thus have profound political consequences for society. Nanci Adler and Vladimir Petrovic, for example, have compiled a data set illustrating how genocide, mass political violence, and historical injustices are being institutionally addressed in different ways and how historical and personal narratives have gained an audience through international criminal tribunals, trials, and truth commissions and how these narratives influence present and future generations and their attitudes towards reconciliation and subsequently democratic institution building. Arnaud Kurze and Christopher Lamont highlight how informal mechanisms, artistic actions, practices, and trends can channel post-conflict and post-authoritarian societies towards reconciliation, resentments, and vengeance, depending on how inclusive or exclusive they are applied. Visual art, music, painting, narrative, novels, movies, public ceremonies, and theater influence reconciliation processes, trials, and policy decisions. Still, they can always be used as propaganda tools to trigger acts of revenge in the same way as they can trigger reconciliation.
The contemporary wars in Eurasia, overall in 2021 in Armenia, since 2022 between Russia and Ukraine, and since 2023 in Israel and the Middle East, have put TJ measures again under scrutiny. This was best formulated in October 2023, shortly after the war between Israel and the Hamas government in Gaza broke out: “As Israel and Hamas battle for control of the narrative, as they blame and demonize one another, we must remember that their words do not change the number of victims, the intensity of human suffering, or the gravity of their atrocities” (…) on all sides. (Travesi, 2023). We now analyze what went wrong in the previous TJ processes and what needs to be done more inclusively to stop the vicious cycle of injustice, polarization, violence, and revenge for future generations. Some argue that World War III is at full speed, partly due to the past three decades of incomplete and exclusive TJ processes: one generation. This claim for TJ and transformative justice applies not only after the war but also in today’s post-colonial debates, climate justice, and access to justice, the UN SDG 16.
Other than in 1990, today, TJ is already part of international and transnational politics. To join the EU, for example, former member states of Yugoslavia, such as Croatia, were urged to collaborate with the ICTY and issue TJ measures to become a member, and the exact mechanism is applied to present accession talks with Bosnia-Herzegovina, Serbia, Macedonia, and Albania, Ukraine, and Moldova. Ukraine must collaborate with the OSCE, Council of Europe, and the ICC regarding war crimes on all sides, including by its army, to be eligible to apply with the EU. These examples show that international concessions and conditions go hand in hand with these governments‘ political will to integrate into the international community, which is considered an incentive for TJ.
