Societies that have experienced violent conflict face considerable challenges in building sustainable peace. One crucial question they need to address is how to deal with their violent past and atrocities that were committed – for example, whether perpetrators should be held accountable by judicial means, or whether the focus should be laid on truth telling and the compensation of victims. Transitional justice (TJ) offers a range of instruments that aim to help societies come to terms with their history of violent conflict. Systematic, empirical analyses of TJ instruments have been emerging over the last years. This Briefing Paper summarises the policy-relevant insights they provide regarding the main TJ instruments: trials; truth commissions; reparations for victims; and amnesties. Reviewing academic literature on the effects of transitional justice in post-conflict contexts, three main messages emerge: Initial evidence suggests that transitional justice can help to foster peace. C...

The term transitional justice has become synonymous with contemporary post-conflict peace building processes. The concept evolved from modest theoretical assumptions into distinctive models. The formal origins of the transitional justice concept can be traced to the 1990s, following the demise of the Eastern Communist bloc when nations experienced transition from autocratic to democratic rule. The roots of the concept can however be traced back to major peace settlements such as the Congress of Vienna (1815), the Paris Peace Settlement (1918) and the Nuremberg and Tokyo Trials after 1945. The major challenge it faced was acceptability and legitimacy; it was largely viewed as an instrument devised invariably to punish either the vanquished or the perceived perpetrators. This criticism may have informed the concept's evolution from being a vindictive 'victor's justice' seeker into defined frameworks such as criminal tribunals, commissions and courts. This paradigm shift was evidenced by the United Nations' recognition of the framework and its deployment in Yugoslavia (1993), Rwanda (1994) and Sierra Leone (2002). Arguably, success story of these case studies' motivated the formation of the International Criminal Court in 2003. The paper will underscore the importance of contexts in the choice of transitional options.

Transitional justice discursively occupies a two-dimensional space mapped by understandings of ‘transition’ and ‘justice.’ Transition is defined very broadly, understood as any regime change, however achieved, because transition is defined contingently, as something that is normatively presumed to have the goal of liberal democracy. Justice, in contrast, is defined narrowly. While the idea of justice is presumed to be represented by a situation where the entirety of human rights law is respected, in both theory and practice transitional justice focuses largely on truth and accountability for past violations, prioritizing civil and political rights over other rights, rather than explicitly building justice for the future.

The field of transitional justice (TJ) emerged out of attempts to give theoretical meaning to ad-hoc accountability policies adopted as part of broader processes of political democratization in Latin America and Eastern Europe. From these beginnings TJ has dramatically expanded in scope and ambition. The hugely increased normative ambitions of TJ are nowhere more apparent than in practices of judicial intervention in situations of ongoing conflict. Such interventions have brought the field of TJ in much closer contact with the related, but distinct, fields of conflict resolution and peacemaking (or peacebuilding). Peacebuilders have also dramatically expanded their policy objectives beyond the cessation of armed conflict to include the establishment of a sustainable peace, the neutralisation of the incentives for a return to conflict, and the realisation of a variety of accountability and rule of law strategies. This chapter accounts for the expanding normative ambitions of the field of TJ and evaluates the implications for TJ of its involvement in ongoing conflicts. It also suggests some tentative ways for TJ to recast its engagement with ongoing conflicts. The chapter is divided into three parts. The first examines the ways in which TJ is increasingly embedded in conflict resolution and peacebuilding efforts and evaluates the relatively recent trend towards judicial intervention in ongoing conflicts. It examines two main underlying trends that drive these developments: the intractability of contemporary armed conflict, and the dramatic development of the ‘global accountability regime’ and the associated expansion of the rights of victims. It also briefly assesses the normative and operational overlaps inherent in the ambitious agenda of ‘liberal peacebuilding’. The second part analyses three particularly significant aspects of judicial interventions in ongoing conflict. First, the move towards judicial interventions in ongoing conflict is anchored in a consequentialist logic that has generated increasingly strident demands for empirical evidence of TJ claims. Yet, in part because of the complex and indeterminate causal pathways of such claims, robust empirical evidence is still lacking. Second, the internationalization of transitional justice has created significant tensions between international and local agency. Yet, the problematic effects of international judicial pressures are also exacerbated by local institutional fragility and by attempts to implement TJ in highly inhospitable conditions, including in the absence of any discernible political transition. Third, the dominance of legal and judicial approaches to TJ has tended to privilege retributive forms of justice in ways that often are not conducive to conflict resolution or political and societal reconciliation. But the judicialization of TJ also runs the risk of obfuscating politics in ways that almost invariably benefit elite interests. The final part of the chapter attempts to move beyond the current theoretical and policy impasse by outlining a proposal for a (possible) way forward that emphasises the complexity inherent in the field of TJ. It also provides brief reflections on the contours of a prudent, incremental, and politically attuned strategy of TJ engagement with ongoing conflict.

This brief assesses the impact of transitional justice mechanisms on peace and democracy. Based on four case studies from Africa and Latin America, it argues that the expected positive effects of transitional justice may be too high. Transitional justice processes are complex and dynamic and may change substantially over time. The distinction between short term and long term impact is essential.