Distributive Justice in Transitions (co-edited) (FICHL Torkel Opsahl, 2010)

Elgar Handbook of Civil War and Fragile States, 2012

Dealing with Wars and Dictatorships: Legal Concepts and Categories in Action, 2014

This chapter proposes a reappraisal of transitional justice through the study of the nature and function of the rule of law it conveys. As originally conceived, transitional justice embraces a concept of the rule of law that is sensitive to the conditions of the political transition, in which law is caught in inexorable tensions between the past and the future. Yet, the increasing use of transitional justice to deal with armed conflicts and human rights violations irrespective of any political transition has created a conceptual and normative disorder, which leads to assimilating the use of transitional mechanisms to that of transitional justice. Should transitional justice apply to situations other than those of political transition? In what other transition-like situations is a sui generis concept of the rule of law justified? Can transitional justice mechanisms be used in situations other than political transitions? The author analyzes these questions bearing in mind that an enlarged and unjustified use of transitional justice may render the concept of transitional justice analytically, descriptively, and normatively meaningless to law. The case study of Colombia shows the perverse effects of conceptual vagueness and brings to light the practical impacts that using an enlarged conception of transitional justice has upon the ordinary rule of law.

2019

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...

Human Rights Quarterly, 2009

Contemporary Social Science, 2020

Transformative justice has emerged as a new practice agenda for addressing structural and systemic violence in post-conflict and post-authoritarian societies. This article is situated at a critical juncture: while the emerging scholarship has focussed on community agency and action, there is little as yet that has explored the social structures and relations in transition societies that are harm-generating and which constrain action. We argue that a critical social science, grounded in realist social theory, systems thinking and complexity theory, have a vital role to play in rendering transparent the relations and structures that resist change. New knowledge about the ‘root causes’ of harm is both conceptually innovative and useful to practice, helping practitioners identify societal arrangements in need of change and informing strategies for action. This article illustrates the approach through its application to a study with poor farmers in post-Revolution Tunisia. The article should be of interest to researchers and practitioners in transitional and transformative justice, conflict and post-conflict, peacebuilding, and security sector reform, who are engaged with understanding and addressing issues of structural and systemic violence.

Foreign Policy Analysis, 2015

Governments often award reparations to victims of mass human rights violations (HRVs) committed during political violence. Although international law requires that governments compensate victims of such violations, some states award reparations while others do not. This paper provides the first global analysis of the determinants of state reparations awards to victims of HRVs. Analyses consider the effects of multiple factors on reparations awards, whether a country has used other types of transitional justice mechanisms, economic development, and regime type. Spatial and rare events logit analyses on a new database for all countries between 1969 and 2006 suggest that wealthy, democratic countries as well as governments that already employ other transitional justice mechanisms are more likely to actually pay reparations to victims than are other governments. 3 Reparations programs are state policies that provide reparations for mass crimes (i.e., HRVs) for a large number of victims (Correa 2011). 4 Transitional justice is comprised of "the processes designed to address past HRVs following periods of political turmoil, state repression, or armed conflict (Olsen, Payne, and Reiter 2010a:1)." There are three main categories of mechanisms for administering transitional justice: (i) accountability; (ii) victim-oriented restorative justice; and (iii) mechanisms that deal with peace and security. Restorative justice includes reparations. Transitional justice mechanisms include war crimes tribunals, truth commissions, reparations programs, lustration programs, institutional reform and amnesty.

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.