Groningen Journal of International Law

International Law Under Construction

The Origins of Transitional Justice

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By Marcos Zunino

Wherever there are allegations of serious human rights violations or international crimes, from Syria, to Venezuela, to Myanmar, calls for transitional justice follow. They involve implementing a policy for dealing with these violations that may include criminal trials, truth-finding initiatives, reparations programmes, vetting of personnel, and state reform efforts. These mechanisms are meant to pursue the transitional justice elements of justice, truth, reparations and guarantees of non-recurrence while paying special attention to the needs and views of victims. Transitional justice has thus emerged as the primary framework for responding to widespread violence. Indeed, ours has even been called the ‘era of transitional justice’. When did this idea of a need to respond to mass violence with this particular toolbox and goals appear?

Three points of origin

Depending on the approach, three main points of origin are proposed for transitional justice. The first approach involves looking at transitional justice as a perennial problem of dealing with past violence that has been addressed in different ways throughout history. Following this approach, the origin of transitional justice can be traced as far back as ancient Greece, where, following a period of tyrannical rule in Athens, different initiatives were adopted to deal with the past once democracy was restored. Another way of engaging with the history of transitional justice is to concentrate on its appearance as a modern practice whose origin is linked with the establishment of the International Military Tribunal that tried senior Nazis in Nuremberg after the end of World War II. The third way to deal with the history of transitional justice is to approach it as a specific discourse or field that appeared at one point in time. From this perspective, transitional justice emerged during the 1990s and reflected certain contemporary values and principles.

Emergence of a discourse

In my book Justice Framed: A Genealogy of Transitional Justice, I follow the last approach and engage with transitional justice as a discourse with certain objects, concepts, actors and characteristics that can be traced back to their historical process of emergence. The emergence of the discourse of transitional justice can be followed through four events in the 1980s and 1990s: the transition to democracy in Argentina in 1983, the end of communism in Eastern and Central Europe after 1989, the reinvigoration of international criminal justice after the creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, and the establishment of the South African Truth and Reconciliation Commission in 1995.

In 1983, after seven years of dictatorial rule marked by severe repression and widespread human rights abuses, a democratic government took office in Argentina. It established the first successful truth commission and put to trial the military leaders of the dictatorship. As more states in the region became democratic and had to grapple with similar repressive legacies, comparative discussions on how to better deal with the human rights abuses of previous regimes began to take place with the Argentine case remaining a prominent example. The collapse of communism from 1989 added impetus to these initial discussions as dozens states of the Soviet Bloc were going through processes of democratization. This prompted efforts to transfer knowledge from the earlier Latin American transitions to the former communist states.

The 1993 creation of the ICTY and the subsequent international and mixed criminal tribunals made international criminal justice a possibility. This renaissance brought about the expansion of the discourse of transitional justice, hitherto limited to national policies as those carried out in Latin America and Eastern and Central Europe, towards international mechanisms for addressing human rights violations. Lastly, the establishment in 1995 of the South African Truth Reconciliation Commission to look into the human rights violations committed during apartheid broadened the scope of the budding transitional justice discourse. Through its robust mandate that allowed it to grant amnesty in return for full disclosure and reliance on a language of reconciliation and healing, the South African Commission cemented the role of non-judicial mechanisms in transitional justice and opened the discourse to multidisciplinary approaches.

These four events shaped the emergence and development of the discourse of transitional justice and infused it with certain characteristics. They also influenced views on which situations of human rights violations warranted transitional justice interventions and which mechanisms should be used to address these violations. The current remit, objectives and toolbox of transitional justice are a result of this process of emergence.

Retrospective history

Although the history of the discourse of transitional justice can be said to begin in 1983, a narrative harking back to Nuremberg in 1945 has become the dominant way to approach transitional justice historically. This retrospective narrative highlights those episodes of violence and the mechanisms used to respond to them that resemble those of the four formative events and occludes those episodes and mechanisms that may be different. As a result of this historical framing process, transitional justice today is widely understood as comprising certain mechanisms expected to be used to respond to certain situations of serious violations of human rights or international crimes throughout the world. The consolidation of transitional justice around these historically-bequeathed understandings of violence and mechanisms can crowd out other potential ways of conceiving of human rights violations and responding to them. Understanding the history of transitional justice can help us to better understand the limitations of current approaches and to find creative ways of overcoming them.

M ZuninoMarcos Zunino is a Research Fellow at the Bingham Centre for the Rule of Law of the British Institute of International and Comparative Law. He currently works on a comparative project on processes for assessing and removing judges following periods of authoritarian rule or conflict. Marcos has previously worked for the United Nations, international non-governmental organisations and the Argentinian judiciary. He is the author of Justice Framed: A Genealogy of Transitional Justice as well as of a number of journal articles and book chapters.

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