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Political Science Transitional Justice
by
Matt Murphy

Introduction

Transitional justice (sometimes called retroactive justice) is broadly defined as policies undertaken by a new regime to rectify or ameliorate injustices perpetrated by the previous regime. It differs from regular “justice” in that it spans different legal or constitutional structures resulting from regime transitions. Its contemporary meaning is usually slightly narrower, referring almost exclusively to policies enacted in an unconsolidated or newly democratic regime to address injustices of the previous authoritarian regime. The primary actors implementing transitional justice are states and international organizations, although increasingly the roles of actors such as nongovernmental organizations (NGOs), villages, and private citizens are considered as well. The relevant injustices are often understood first as human rights violations, such as war crimes, genocide, torture, or disappearances, but transitional justice policies can also be aimed at a much wider range of targets, such as more conventional legal crimes, political decisions, bureaucratic crimes, corruption, collaboration, and socioeconomic injustices. The range of policies falling under the rubric of transitional justice includes criminal trials, purges, screening, truth commissions, amnesties, reparations, compensation, rehabilitation, apologies, property restitution, memorialization, and policies aimed at reconciliation. Although there is a long history of literature on these issues, there was no field called “transitional justice” until the 1980s. Since then it has developed across all the main subfields of political science, primarily international relations, comparative politics, and political theory, and less so in American politics. Much analysis comes in the form of collections of case studies and is descriptive or normative, concerning what policies are necessary, appropriate, or beneficial in what contexts. Rapidly expanding since the early 2000s has been empirical and comparative work on the causes of and constraints on transitional justice policies; the impacts of policy choices at political, social, and psychological levels; and the effects of the process of implementation on outcomes.

General Overviews

General literature on transitional justice can be divided into a few classic and more numerous contemporary works on transitional justice issues—usually debates over whether and how new regimes should deal with previous ones. Thucydides 1972 recreates a complex and nuanced debate over how to punish collaboration. Machiavelli 1994 is more social scientific in its attempts to derive general rules about the conditions for and effectiveness of public violence. Contemporary literature begins with World War II, and especially the International Military Tribunal at Nuremberg. From here on the discourse changes, since all discussions have to take into account new discourse on human rights, war crimes, and the possibility of justice through international interventions. The edited volumes Herz 1982 and, especially, Kritz 1995 are excellent introductions to the main cases and debates as of their dates of publication, and the enormous compilations of material in Kritz 1995 are excellent jumping off points for further research. De Brito, et al. 2001 offers more theoretically grounded and comparative analysis focused on Iberia and Latin America. Elster 2004 provides a concise historical overview and a thoughtful framework of variables for analysis of further cases. Teitel 2003 traces the evolution of the concept of transitional justice, dividing it into three time periods, culminating in the 21st-century normalization of transitional justice discourse, if not practice. Roht-Arriaza and Mariezcurrena 2006 offers a range of contemporary studies of policy innovations and newly emerging cases.

  • De Brito, Alexandra Barahona, Carmen Gonzaléz Enríquez, and Paloma Aquilar, eds. The Politics of Memory: Transitional Justice in Democratizing Societies. New York: Oxford University Press, 2001.

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    A collection of thematic and regional chapters covering international actors in transitional justice and policies in Portugal, Spain, the Southern Cone, Central America, South Africa, Eastern Europe, Germany, and the former Soviet Union. Particularly useful for Latin America and the Iberian states.

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  • Elster, Jon. Closing the Books: Transitional Justice in Historical Perspective. New York: Cambridge University Press, 2004.

    DOI: 10.1017/CBO9780511607011Save Citation »Export Citation »E-mail Citation »

    A comprehensive introduction to transitional justice, including a historical survey and categorization of the main variables determining its form and intensity, as well as an analysis of the emotions involved in justice after political change.

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  • Herz, John H., ed. From Dictatorship to Democracy: Coping with the Legacies of Authoritarianism and Totalitarianism. Westport, CT: Greenwood, 1982.

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    A collection of essays covering most of the main instances of transitional justice from World War II to the early 1980s. Chapters emphasize the political difficulty of implementing policies, unintended consequences, and the influence of outgoing elites. Particularly strong work on Germany, Japan, and Greece.

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  • Kritz, Neil, ed. Transitional Justice: How Emerging Democracies Reckon with Former Regimes. 3 vols. Washington, DC: United States Institute of Peace Press, 1995.

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    A very extensive compilation of history, analysis, and documentation on transitional justice. Volume 1, General Considerations, provides a broad overview of relevant questions and debates. Volume 2, Country Studies, covers twenty-one cases between World War II and post-Communist Eastern Europe. Volume 3, Laws, Rulings, and Reports, contains statutes and primary documents.

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  • Machiavelli, Niccolò. Selected Political Writings. Edited and translated by David Wootton. Indianapolis, IN: Hackett, 1994.

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    Machiavelli’s discussions of the symbolic and demonstrative uses of violence are directly applicable to contemporary debates over morality and pragmatism in transitional justice. Machiavelli falls on the pragmatic end of the spectrum, but his analyses of the use and abuse of cruelty and the possibilities of foundational violence include subtle considerations of normative and ethical issues.

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  • Roht-Arriaza, Naomi, and Javier Mariezcurrena, eds. Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice. New York: Cambridge University Press, 2006.

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    A collection of case studies of recent transitional justice. Crosses regions and types of policies.

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  • Teitel, Ruti. “Transitional Justice Genealogy.” Harvard Human Rights Journal 16 (2003): 69–94.

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    Traces the origins and evolution of the term since World War II, with a focus on legal approaches. Distinguishes three phases, leading to the expansion of transitional justice discourse in the 1980s and its normalization in the 21st century, where many kinds of claims are made in terms of justice and through judicial institutions and procedures.

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  • Thucydides. History of the Peloponnesian War. Translated by Rex Warner. Introduction and notes by M. I. Finley. Harmondsworth, UK: Penguin, 1972.

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    A foundational text rather than an overview, this is one of the earliest discussions of ethical and practical debates over transitional justice. “The Mytilinean Debate” concerns how to treat collaborators with an enemy power; narrow versus broadly collective punishment; and how to balance vengeance, justice, and practical political considerations.

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Reference and Practitioner Resources

Many organizations have been formed around the cataloging and advocacy of transitional justice, or have turned their activities in that direction as the institutionalization and discourse of global human rights protection has expanded. Amnesty International and Human Rights Watch are the two largest organizations cataloging and describing both violations and attempts to protect human rights. (The International Trials section cites other international institutions that are also useful sources for data, timelines, documents, and basic analysis.) The International Center for Transitional Justice is the advocacy organization with the most extensive resources for regional coverage, research, and both descriptive and analytical publications. The United States Institute of Peace provides similar resources but is focused more on conflict resolution and prevention than exclusively transitional justice. The Transitional Justice Institute is one of many academic centers offering research, data, and links on its website. The African Transitional Justice Network is a South African nongovernmental organization (NGO) focused on Africa as a whole, although based in South Africa. All these organizations’ websites contain numerous links, although not all of them are kept up to date.

Bibliographies

All the academic works listed in this entry contain extensive bibliographies, so relatively comprehensive and relatively recent works like Teitel 2000 (cited under Effects) and Elster 2004 (under General Overviews) are most useful. Internet bibliographies and collections of links are similarly helpful, although they tend not to be well maintained. The International Internet Bibliography on Transitional Justice is an excellent starting point for cases prior to the year 2000, while Vinjamuri and Snyder 2004 trades off number of sources for detail and substantive discussion of sources. The INCORE Guide to Internet Sources on Truth and Reconciliation, updated through 2002, contains links to numerous documents, academic papers, and organizations, and is focused mainly on South Africa, Rwanda, and the International Criminal Tribunal for the former Yugoslavia (ICTY). The only academic journal focused entirely on transitional justice is the International Journal of Transitional Justice. Its tables of contents and article bibliographies can serve as continually updated bibliographies in themselves.

Causes

As transitional justice has developed as a field, literature on its causes has been characterized by two broad schools: normative and pragmatic. Normative approaches, which often include human rights organizations, international lawyers, and victims’ representatives, have seen transitional justice outcomes as a matter of how committed the new regime is to norms of human rights or natural law. Pragmatic or realist approaches have understood transitional justice outcomes as the outcome of political competition and the influence of outgoing elites. This distinction corresponds to a primary emphasis on either justice or the transition of power. Increasingly, this simple dichotomy is broken down by analysis that takes legal, political, and perhaps moral imperatives into account. O’Donnell and Schmitter 1986 and Huntington 1991 are clear examples of the emphasis on transitions and negotiation, although they have been criticized for overemphasizing the initial transitional situation to the exclusion of later developments that may allow or prevent transitional justice. Skaar 1999, Huyse 1995, and Welsh 1996 expand the range of cases and provide more dynamic frameworks that may explain changes in transitional justice policies, not just the initial set of decisions. Nino 1998 provides the most detailed description and explanation of the transitional dynamics outlined by O’Donnell and Schmitter 1986.

  • Huntington, Samuel P. The Third Wave: Democratization in the Late Twentieth Century. Norman: University of Oklahoma Press, 1991.

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    Huntington’s analysis of third-wave democratic transitions, especially in chapter 5, identifies the mode of transition, fleeting mass passions, and power of the outgoing elites as the determinants of transitional justice. Justice comes quickly, he claims, or not at all. His analysis of political context offers important insights, although the accompanying predictions are sometimes too blunt.

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  • Huyse, Luc. “Justice after Transition: On the Choices Successor Elites Make in Dealing with the Past.” Law and Social Inquiry 20.1 (1995): 51–78.

    DOI: 10.1111/j.1747-4469.1995.tb00682.xSave Citation »Export Citation »E-mail Citation »

    Argues that the actions of elites in transitions are responses to the circumstance of the transition, and contrasts post-Communist cases with post-Nazi cases. Clearly lays out the arguments for and against retributive policies, and identifies the legacies of authoritarianism, international legal norms, and the mode of transition as key determinants of elite policy choices.

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  • Nino, Carlos Santiago. Radical Evil on Trial. New Haven, CT: Yale University Press, 1998.

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    Nino’s firsthand experience in Argentina’s transition informs his philosophically rich analysis of law, ethics, and political compromise. He surveys the constraints on transitional justice in Argentina and the problems of past attempts at prosecution, arguing that prosecution is generally the outcome of the mode of transition and the type of past abuses, and that it is best pursued for prevention rather than retribution.

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  • O’Donnell, Guillermo, and Philippe C. Schmitter. Transitions from Authoritarian Rule: Tentative Conclusions about Uncertain Democracies. Baltimore: Johns Hopkins University Press, 1986.

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    A short and readable volume summarizing conclusions about democratic transitions in Latin America; includes a chapter that situates bargaining and the implementation of transitional justice as key steps in the process of negotiated transitions from authoritarian rule. Good example of transitional justice as part of transitional pacts and post–military regime transitions.

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  • Skaar, Elin. “Truth Commissions, Trials—Or Nothing? Policy Options in Democratic Transitions.” Third World Quarterly 20.6 (December 1999): 1109–1128.

    DOI: 10.1080/01436599913316Save Citation »Export Citation »E-mail Citation »

    Skaar modifies the position that outcomes are determined by severity of abuses or power of outgoing elites by arguing that public demand for truth and justice, balanced against the outgoing regime’s demand for impunity, determines transitional justice policies. Where demand is strong and outgoing elites weak, trials result. Where there is a balance of power, truth commissions are the result.

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  • Welsh, Helga. “Dealing with the Communist Past. Central and East European Experiences after 1990.” Europe-Asia Studies 48.3 (1996): 413–428.

    DOI: 10.1080/09668139608412356Save Citation »Export Citation »E-mail Citation »

    In a survey of transitional justice policies in post-Communist democracies, argues that their variety and intensity are explained by historical legacies and the political imperatives of the current day. A concise and clear examination of the limitations of purely political or justice-based explanations.

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Effects

There is not a clear division between literature on the causes of transitional justice and literature on its effects. Many texts discuss both, or base advocacy of a set of policies on assumptions about their outcomes. The most common effects of transitional justice discussed in the literature are effects on the regime transition, such as political stability or democratization, justice in the sense of punishment, truth, peace, and human rights. See the sections Causes, International Trials, Domestic Trials, and Reparations, Apologies, Memorials, and Reconciliation for additional material. Michnik and Havel 1993 is a good example of the position that transitional justice represents a tradeoff of sorts between justice and democracy. Teitel 2000 develops an influential argument that transitional justice policies affect the regime by helping to constitute the regime, perhaps more so than by punishing, revealing truths, or purging. Osiel 1997 presents a similar but narrower argument that trials can contribute to the development of liberal democracy and reconciliation. Two critical assessments of impacts on peacebuilding and political stability are Snyder and Vinjamuri 2003–2004, which focuses on the political impacts of trials in weakly institutionalized democracies, and Mendeloff 2004, which questions common claims about truth commissions in post-conflict societies. Stover, et al. 2005 is one of the few academic analyses of the impact of transitional justice in Iraq on security and political stability. Van der Merwe, et al. 2009 is a good example of recent attempts to systematize the study of impacts and facilitate more comparisons in transitional justice studies.

  • Mendeloff, David. “Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm?” International Studies Review 6.3 (2004): 355–380.

    DOI: 10.1111/j.1521-9488.2004.00421.xSave Citation »Export Citation »E-mail Citation »

    Critically assesses claims that truth commissions aid in the practice of peacebuilding in postconflict environments.

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  • Michnik, Adam, and Vaclav Havel. “Justice or Revenge?” Journal of Democracy 4.1 (1993): 20–27.

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    A conversation between two major figures in the Polish and Czechoslovak transitions from Communist rule. Covers the difficulty of punishing former elites without violating rule of law norms or human rights by affecting too many people, as well as the political necessity of moderation and compromise in dealing with past crimes.

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  • Osiel, Mark. Mass Atrocity, Collective Memory, and the Law. New Brunswick, NJ: Transaction, 1997.

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    Examines how legal justice after mass atrocity can contribute to creating a collective memory. Trials after administrative massacres then can contribute to some kinds of social solidarity, reconciliation, and reconstruction. This happens not through uniform interpretations of the past, but through a recognition of differences.

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  • Snyder, Jack, and Leslie Vinjamuri. “Trials and Errors: Principle and Pragmatism in Strategies of International Justice.” International Security 28.3 (Winter 2003–2004): 5–44.

    DOI: 10.1162/016228803773100066Save Citation »Export Citation »E-mail Citation »

    Explores the pragmatic political consequences of pursuing criminal trials in countries with weak or volatile institutional structures.

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  • Stover, Eric, Hanny Megally, and Hania Mufti. “Bremer’s “Gordian Knot”: Transitional Justice and the US Occupation of Iraq.” Human Rights Quarterly 27.3 (2005): 830–857.

    DOI: 10.1353/hrq.2005.0044Save Citation »Export Citation »E-mail Citation »

    Surveys the first few years of transitional justice policies in Iraq. Argues that failure to consult international organizations for common lessons about the pitfalls of rapid trials and highly politicized screening led to policies that backfired, destabilizing rather than unifying the population, or could never be implemented.

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  • Teitel, Ruti G. Transitional Justice. New York: Oxford University Press, 2000.

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    A comparative analysis based heavily in legal theory. Uses many cases to argue that transitional justice can be constitutive of a new regime, rather than merely marking the end of the old one. Sections on criminal trials, administrative justice, truth commissions, and reparations.

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  • van der Merwe, Hugo, Victoria Baxter, and Audrey R. Chapman, eds. Assessing the Impact of Transitional Justice: Challenges for Empirical Research. Washington, DC: United States Institute of Peace, 2009.

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    Collection of chapters on approaches and methods of studying the impact of transitional justice policies. Most chapters address methodology, and several apply assessment methods to cases.

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Law

There are two themes in the literature connecting transitional justice and law. One concerns legal theory, such as natural and positive law debates, the constraints placed on the pursuit of justice by the rule of law, and the relationships between law, politics, and morality. Kirchheimer 1961 is a foundational analysis of the variety and forms of political trials. Hart 1961 and Fuller 1964 engage in a debate about the nature of positivism and the possibilities for legitimate transitional justice. Shklar 1964 represents a strong critique of positivism, arguing that law is an extension of politics, which makes it impossible to disentangle law from its political context, and also makes it possible to pursue justice under liberal regimes in ways that might otherwise be prohibited. Posner 2005 bears similarities to Shklar 1964. Orentlicher 1991, unlike the previous three works, takes international legal norms as a starting point, and makes a strong argument for the obligation to prosecute violations regardless of political concerns. The second theme is a more practical one: the promotion of the rule of law. McAdams 1997 focuses on attempts to do so domestically through transitional justice, and Stromseth, et al. 2006 focuses on the much more difficult cases of intervention in postconflict societies.

  • Fuller, Lon L. The Morality of Law. New Haven, CT: Yale University Press, 1964.

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    A commentary on legal theory, in some parts a direct response to Hart 1961. Attempts to modify positivist approaches by linking law and morality, distinguishing between the morality of duty and the morality of aspiration. In a discussion of implications for transitional justice, particularly post-Nazi prosecution, Fuller argues for the possibility of such trials without necessarily violating bans on retroactivity. Also contains a short class exercise on choosing transitional justice policies.

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  • Hart, H. L. A. The Concept of Law. Oxford: Clarendon, 1961.

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    Influential work of legal theory presenting a view of legal positivism that recognizes primary rules of obligation and secondary rules of recognition, change, and adjudication. Law and morality are separate, and law then has limited utility for potentially retroactive purposes of transitional justice.

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  • Kirchheimer, Otto. Political Justice: The Use of Legal Procedure for Political Ends. Princeton, NJ: Princeton University Press, 1961.

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    A survey of the methods and procedures of political justice in a variety of regimes. Useful for discussion of the mechanisms by which political actors may alter or interfere with legal procedures. Not primarily concerned with transitional justice, but sections on judges, amnesties, and constitutional courts contributed to later legal debates about transitional justice.

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  • McAdams, A. James, ed. Transitional Justice and the Rule of Law in New Democracies. Notre Dame, IN: University of Notre Dame Press, 1997.

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    Collection of case studies on implemented and attempted transitional justice in Latin America, eastern Europe, Greece and South Africa. Each chapter discusses a country’s efforts at reconciling political imperatives with popular demand and the perceived duty to punish (or not punish) ousted elites. Particularly useful chapters on Poland, Germany, Hungary, and Chile.

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  • Orentlicher, Diane F. “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime.” Yale Law Journal 100.8 (1991): 2537–2615.

    DOI: 10.2307/796903Save Citation »Export Citation »E-mail Citation »

    A strongly retributive argument that it is the obligation of new regimes to prosecute human rights violations under the previous regime. Based on norms of international law, this argument is highly critical of political compromises, transitional pacts, or interventions on behalf of outgoing elites that impede their full prosecution. The duty to prosecute, then, must be pursued even at the risk of political or democratic instability.

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  • Posner, Eric A. “Political Trials in Domestic and International Law.” Duke Law Journal 55 (2005): 75–152.

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    A survey of political trials where political attitudes and activities, rather than legal violations, are judged. Argues that they are more common in liberal democracies than one might expect, and that they are appropriate under some conditions. One section deals specifically with transitional justice, but the entire analysis is applicable to the legal debates of transitional justice.

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  • Shklar, Judith N. Legalism: Law, Morals, and Political Trials. Cambridge, MA: Harvard University Press, 1964.

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    A critique of positivist understandings of law through an analysis of political trials, in particular the trials of Germans and Japanese after World War II. Part II, Law and Politics, is essential reading for transitional justice scholars for its argument that law is an extension of politics, and should be judged on the substance of those politics, not whether it meets legalistic standards.

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  • Stromseth, Jane, David Wippman, and Rosa Brooks. Can Might Make Rights? Building the Rule of Law after Military Interventions. New York: Cambridge University Press, 2006.

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    Clearly written and well-organized textbook of sorts on rule of law promotion in postconflict societies. Emphasizes empirical cases and on-the-ground dilemmas of institution-building, while also considering cultural and theoretical aspects of rule of law in a nuanced way. Two main conclusions are that construction of formal institutions is not sufficient, and that security is the “sine qua non” of justice.

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Policies

Transitional justice refers to a somewhat discrete range of policy tools for addressing past injustice. The policies most commonly falling into range are international or domestic criminal prosecution (see International Trials and Domestic Trials); Truth Commissions; Screening and Lustration; nonretributive policies such as reparations, compensation, apologies, and memorials; and finally policies to promote reconciliation. Constitution making, property restitution, economic redistribution, antidiscrimination, and education policies are sometimes dealt with as transitional justice, but these are more often treated as part of a process of social and political reconstruction. Criminal prosecutions are commonly understood to be subject to different sets of rules and constraints than truth commissions, reparations, or other less retributive policies, with screening and lustration falling somewhere in between the models of criminal trials and administrative decisions. In the literature one can often discern a choice between case studies, where the interaction between policy types is clearer, and comparative studies focused on one policy type, where the benefits of variation may outweigh the necessarily less detailed accounts of each case. There has also been a clear but not absolute pattern of connections between regions and policy types, with much of the literature on tribunals coming from Europe and Africa, on domestic trials coming from Latin America, and on lustration and screening focused on eastern Europe.

International Trials

International trials are criminal prosecutions run by coalitions of states or international organizations such as the United Nations. They may take place in the same country as the crimes being prosecuted, but more often they do not. The literature on international trials began after World War II with the Tokyo and Nuremberg tribunals. These topics are covered in the section Europe and Japan after World War II. The contemporary topic begins again with the creation of the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and subsequently the International Criminal Court. The websites of these three tribunals provide invaluable information about these processes. The analytical literature on international trials, where not purely international law (see Law), is dominated by the recognition that tribunals are costly, difficult, and often require extensive pressure or compromise to form. Bass 2000 shows this in historical perspective. Peskin 2008 is similar, but it is narrower in focus and therefore better able to trace the interaction between international tribunals and domestic politics. Beigbeder 1999 and Roht-Arriaza 2005 take from these insights a hopeful view that international norms are growing in influence for a number of reasons. UN High Commissioner on Human Rights 2006 incorporates existing scholarship on the design and implementation of trials into practical recommendations for policymakers.

  • Bass, Gary Jonathan. Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton, NJ: Princeton University Press, 2000.

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    A historical survey of war crimes tribunals from St. Helena to Yugoslavia. Argues that although tribunals can be extremely effective, as in Nuremberg, they are likely to be fraught with difficulties on military, political, and diplomatic levels. Chapters on individual tribunals are useful for the detailed tracing of their formation and implementation. Also a good counterpoint to analyses done entirely from the perspective of international law.

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  • Beigbeder, Yves. Judging War Criminals: The Politics of International Justice. New York: St Martin’s, 1999.

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    A survey of 19th- and 20th-century tribunals, focused most closely on the Nuremberg and Tokyo trials. Argues that national courts are not able to enforce humanitarian law, and traces the slow development of an international criminal law up to the formation of the ICC. Very useful for historical sections, particularly Tokyo, but less so for the story of the ICC.

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  • International Criminal Court.

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    Website of the International Criminal Court, the permanent body created by the United Nations for criminal prosecution of those human rights violators who are not prosecuted elsewhere. Contains founding documents and case information. Much less extensive than similar sites for Yugoslavia and Rwanda, because the ICC is newer and has been engaged in fewer cases.

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  • International Criminal Tribunal for the Former Yugoslavia.

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    The website of the first international criminal tribunal since the end of World War II contains copious information about indictments, trial processes, defendants, and convictions, as well as background material and founding legal documents of the ICTY. Constantly updated as new developments take place.

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  • International Criminal Tribunal for Rwanda.

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    The website of the International Criminal Tribunal for Rwanda contains indictments, trial transcripts, and data on defendants, convictions, and investigations. Not consistently updated and not as much material as the ICTY website, but still the first source to examine for any research on tribunal activities.

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  • Peskin, Victor. International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation. Cambridge, UK: Cambridge University Press, 2008.

    DOI: 10.1017/CBO9780511790584Save Citation »Export Citation »E-mail Citation »

    Close investigation of the political negotiations and compromises necessary for the formation and implementation of the ICTY and ICTR. Unlike many studies of international tribunals, looks closely at the interaction between international tribunals (“virtual trials”) and domestic politics and prosecutions.

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  • Roht-Arriaza, Naomi. The Pinochet Effect: Transnational justice in the age of human rights. Philadelphia: University of Pennsylvania Press, 2005.

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    A close analysis of the 1998 arrest of Augusto Pinochet in London and the subsequent diplomatic and political negotiations that involved many different countries and laid the groundwork for future prosecutions of political elites outside of their home countries. Excellent for information and analysis of the Pinochet case, and much of the book is also helpful for understanding how international and domestic law interact.

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  • UN High Commissioner for Human Rights. Rule-of-Law Tools for Post-Conflict States: Prosecution Initiatives. New York: United Nations, 2006.

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    Part of a series of UN guidelines for postconflict situations. Provides recommendations for designing fair and sustainable processes in conditions of low trust and weak state capacity. Incorporates some of the political and democratization dangers outlined in other works into recommendations for limited and closely monitored trial processes that take advantage of outside expertise by internationalizing the process where appropriate, but that also maintain links with victims.

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Domestic Trials

As opposed to International Trials, domestic transitional justice trials take place within the borders of one state, and since they are run by the domestic government, they are subject to different sets of pressures and constraints. The two kinds of prosecution considered are conventional legal trials and, more recently, grassroots or “informal” justice mechanisms, Rwandan Gacaca courts being the primary example. Walzer 1992 is a fascinating comparison of two trials of kings, demonstrating that political and legal context can generate radically different impacts on politics and the rule of law. Arendt 1963 is a famous account of the trial of a Nazi war criminal in Israel that focuses on the limitations of criminal justice in addressing bureaucratic violence. Borneman 1997 argues that retributive justice, in the form of trials and punishment, is essential not only to the rule of law but also to political stability and peace. McAdams 1997 takes up the question of retribution and justice through many case studies, while Nino 1998 is an in-depth and philosophically informed analysis of trials in Argentina. Longman 2006 and Burgess 2006 are early descriptions and assessments of local, informal mechanisms of accountability that seem to be increasingly popular, but whose impacts are not yet well studied.

  • Arendt, Hannah. Eichmann in Jerusalem: A Report on the Banality of Evil. New York: Viking, 1963.

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    An account of the Israeli trial and conviction of a Nazi war criminal, demonstrating the inability of conventional law to encompass the evil of genocide. Argues that the conviction of Eichmann was appropriate but that he was not an effective scapegoat for Nazi crimes. Highly readable and thought provoking, but subsequently criticized for historical inaccuracies and understating Eichmann’s role.

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  • Borneman, John. Settling Accounts: Violence, Justice, and Accountability in Postsocialist Europe. Princeton, NJ: Princeton University Press, 1997.

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    Focused on the former GDR and post-Socialist region; argues that retribution through criminal prosecution is fundamental to the rule of law and can help prevent cycles of destabilizing violence. Theoretically rich analysis that does not always match data from the region. Most useful for close analyses of German prosecutions in Germany.

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  • Burgess, Patrick. “A New Approach to Restorative Justice—East Timor’s Community Reconciliation Process” In Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice. Edited by Naomi Roht-Arriaza and Javier Mariezcurrena, 176–205. Cambridge, UK: Cambridge University Press, 2006.

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    A discussion of the potential of the Community Reconciliation Process in East Timor to contribute to accountability and reconciliation. The process combines criminal law, civil procedure, mediation, arbitration, and traditional practices in a kind of combined community trial and truth hearing. While the potential for achieving concrete local results without extensive new resources is great, the outcomes are not yet well known.

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  • Longman, Timothy. “Justice at the Grassroots? Gacaca Trials in Rwanda.” In Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice. Edited by Naomi Roht-Arriaza and Javier Mariezcurrena, 206–228. New York: Cambridge University Press, 2006.

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    Presents empirical research from Rwanda and argues that Gacaca trials can contribute to reconciliation and accountability. Despite challenges for due process and rights protection, the grassroots procedures can be valuable as long as public participation is high. Useful for firsthand observations and analysis of the trial process, but too early in the process for many concrete conclusions.

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  • McAdams, A. James, ed. Transitional Justice and the Rule of Law in New Democracies. Notre Dame, IN: University of Notre Dame Press, 1997.

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    A collection of transitional justice case studies by country specialists focused on criminal prosecution and other retributive policies, the interactions between these policies and political interests, and their impacts on establishment of the rule of law.

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  • Nino, Carlos Santiago. Radical Evil on Trial. New Haven, CT: Yale University Press, 1998.

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    Nino investigates the causes, process, and consequences of transitional justice trials in Argentina from a participant’s perspective. A thoughtful combination of normative and analytical approaches.

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  • Walzer, Michael, ed. Regicide and Revolution: Speeches at the Trial of Louis XVI. Translated by Marian Rothstein. New York: Columbia University Press, 1992.

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    This contrast of two trials and executions of kings (Charles I of England and Louis XVI of France) makes a key distinction between “killing the king” and “killing the monarchy.” Shows how the legal procedures and political context can lend different significance to similar punishments. The first five short chapters contain the most important analysis.

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Truth Commissions

Truth commissions are state-created organizations set up to investigate and expose some narrow aspect of the past, usually (but not always) through the widespread participation of victims. They often have institutional connections with amnesties, criminal prosecutions, or reparations. Since the South African Truth and Reconciliation Commission (TRC; see Africa) was formed in 1995, the literature on truth commissions has exploded because of scholarship on South Africa and the expansion of the truth commission model to many other countries besides South Africa. (See Africa and Latin America for other works.) Hayner 2000 is the best-known work on truth commissions and remains an excellent starting point. It necessarily skimps on detailed analysis of the truth commission process, which can be found in Rotberg and Thomson 2000, Gibson 2004, or Chapman and van der Merwe 2008. Schabas 2006 considers a different African truth commission, without the starting assumption that truth commissions are necessarily separate from retribution. Freeman 2006 considers truth commissions more generally, in a practical attempt to provide guidelines to remedy some of the shortcomings pointed out by the other works.

  • Chapman, Audrey R., and Hugo van der Merwe, eds. Truth and Reconciliation in South Africa? Did the TRC Deliver? Philadelphia: University of Pennsylvania Press, 2008.

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    Collection of essays evaluating the success of the South African TRC from the victims’ perspective, from the perspective of amnesty, in truth finding, and in public attitudes. Chapters vary in their arguments, but find mixed success at best. The lack of resources, despite the perception that the TRC was a high government priority, hampered the effectiveness of the TRC on all counts.

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  • Freeman, Mark. Truth Commissions and Procedural Fairness. Cambridge, UK: Cambridge University Press, 2006.

    DOI: 10.1017/CBO9780511584473Save Citation »Export Citation »E-mail Citation »

    General analysis of truth commissions from a legal perspective, focusing on rules and procedures to ensure fairness and equity, rather than broader claims about the social impact.

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  • Gibson, James L. “Does Truth Lead to Reconciliation? Testing the Causal Assumptions of the South African Truth and Reconciliation Process.” American Journal of Political Science 48.2 (April 2004): 201–217.

    DOI: 10.1111/j.0092-5853.2004.00065.xSave Citation »Export Citation »E-mail Citation »

    Gibson argues that truth can lead to reconciliation in some circumstances, and has done so in part in South Africa. Using extensive surveys and a clearly designed research project, he finds that acceptance of the truth as promulgated by the TRC is associated with reconciled attitudes for some racial groups. The limited conclusion is perhaps less important than the data itself and the well-thought-out attempt to empirically measure abstract concepts.

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  • Hayner, Priscilla. Unspeakable Truths: Confronting State Terror and Atrocity. New York: Routledge, 2000.

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    The major work on truth commissions. Explores the processes of twenty-four truth commissions around the world, focusing on the conflict between the need to remember and the need to forget. Explores the wide variations in mandates and rules, and argues for their general success in providing some accountability and official information in situations where political and military limitations still remain.

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  • Rotberg, Robert I., and Dennis Thomson, eds. Truth v. Justice: The Morality of Truth Commissions. Princeton, NJ: Princeton University Press, 2000.

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    A collection of essays focused on the South African TRC, but touching on truth commissions and possibly truth commissions elsewhere. Essays cover the problem and potential of amnesty, the conflict between reconciliation and retribution, and the moral basis for such a response to injustice.

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  • Schabas, William. “The Sierra-Leone Truth and Reconciliation Commission.” In Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice. Edited by Naomi Roht-Arriaza and Javier Mariezcurrena, 21–42. New York: Cambridge University Press, 2006.

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    Analyzes the truth commission in Sierra Leone, which was formed at the same time as a special court. Truth commissions are often understood as alternatives to retributive justice, when trials are not possible, but this case suggests that the different mechanisms may be complementary rather than tradeoffs.

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Screening and Lustration

Screening means checking employees or politicians for disqualifying actions or memberships under the previous regime, and exposing, dismissing, or banning those with these negative characteristics. Lustration describes a variety of screening practices in eastern Europe, usually checking public employees for past collaboration with the Communist secret police. Although administrative and political screening was done in Europe and Japan after World War II (see Europe and Japan after World War II), the literature on screening as a transitional justice policy option did not begin until the post-Communist transitions in Europe after 1989. (See Eastern Europe for additional works.) The literature on screening has evolved from descriptive and normative to more analytical, with the comparative aspect becoming more important as cases outside of eastern Europe have been included. Wechsler 1995 was an early journalistic piece that influenced future thinking on the arbitrary nature of lustration. Ellis 1996 and Offe 1996 were written in the midst of domestic political battles over lustration, with Offe perhaps the most critical of the three. Tucker 1999 is a notable example of an approach that saw lustration as not just useful, but necessary, given the dispersion of former Communist officials and secret police into positions of power in newly democratic societies. Miller 1998 and McAdams 2001 are two of the more detailed analyses of Germany, the state that implemented the most comprehensive screening policy of all. Nedelsky 2004 revisits the question of causes of screening policies in a comparison of the Czech Republic and Slovakia, emphasizing the degree of legitimacy of the authoritarian regime. The recent trend of empirically and comparatively based works offering practical policy recommendations is exemplified by Mayer-Rieckh and de Grieff 2007.

  • Ellis, Mark S. “Purging the Past: The Current State of Lustration Laws in the Former Communist Bloc.” Law and Contemporary Problems 59.4 (1996): 181–196.

    DOI: 10.2307/1192198Save Citation »Export Citation »E-mail Citation »

    Surveys lustration laws in nearly all of post-Communist eastern Europe. One of the widest surveys of lustration legislation, with some political context discussed. More useful as a reference work than for its argument that the impact of lustration on democratization is still unclear.

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  • Mayer-Rieckh, Alexander, and Pablo de Grieff, eds. Justice as Prevention: Vetting Public Employees in Transitional Societies. New York: Social Science Research Council, 2007.

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    A publication of the International Center for Transitional Justice, this volume is a collection of chapters on single cases of vetting or screening, followed by thematic chapters on the problems of due process, abuse, and information management. Each chapter’s goal is to derive lessons from its case or issue, and the overall goal of the book is policy design advice.

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  • McAdams, A. James. Judging the Past in Unified Germany. Cambridge, UK: Cambridge University Press, 2001.

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    The book as a whole considers trials, lustration, property restitution, and historical investigation in post-Communist Germany. The very detailed chapter on screening is critical of the arbitrariness of some screening practices, despite ostensible guarantees of due process.

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  • Miller, John. “Settling Accounts with a Secret Police: The German Law on Stasi Records.” Europe-Asia Studies 50.2 (1998): 305–330.

    DOI: 10.1080/09668139808412537Save Citation »Export Citation »E-mail Citation »

    Focuses on screening in Germany, the state that has implemented farther-reaching transitional justice than any other in the region. Discusses the law on secret police files, which governs screening as well as individual access to records. Argues that the record has been mixed, but that the German policies have accomplished much in managing and disseminating formerly secret information.

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  • Nedelsky, Nadya. “Divergent Responses to a Common Past: Transitional Justice in the Czech Republic and Slovakia.” Theory and Society 33.1 (2004): 65–115.

    DOI: 10.1023/B:RYSO.0000021428.22638.e2Save Citation »Export Citation »E-mail Citation »

    Compares transitional justice policies in the formerly unified Czech Republic and Slovakia. Argues that the legitimacy of the past regime is a key factor in explaining policies such as lustration, more important than the mode of transition. Slovakia then implemented less screening because its society viewed the Communist regime as more legitimate.

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  • Offe, Claus. Varieties of Transition: The East European and East German Experience. Cambridge, MA: MIT Press, 1996.

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    Chapter 5 in particular focuses on disqualification as one of the transitional justice options facing post-Communist states. Suggests that the legal and constitutional concerns are likely to outweigh the benefit of widespread exclusions.

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  • Tucker, Aviezer. “Paranoids May Be Persecuted: Post-Totalitarian Retroactive Justice.” Archives Européennes de Sociologie 40.1 (1999): 56–100.

    DOI: 10.1017/S000397560000727XSave Citation »Export Citation »E-mail Citation »

    One of the stronger arguments in favor of lustration in post-Communist societies. Recognizes that screening is constrained by the lack of human resource (i.e., replacement candidates). Argues that lustration is essential for democratization, at least in the Czech case, because of the damage former elites and nomenklatura can do in the newly open system.

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  • Weschler, Lawrence. “The Velvet Purge: The Trials of Jan Kavan.” Excerpted In Transitional Justice: How Emerging Democracies Reckon with Former Regimes. Vol. 2, Country Studies. Edited by Neil J. Kritz, 545–546. Washington, DC: United States Institute of Peace, 1995.

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    Traces the story of Jan Kavan, a former dissident who was accused of collaborating with the Czechoslovak secret police. His case demonstrates the ambiguity of judgments of collaboration, especially based on secret police files. Originally appeared in The New Yorker, 19 October 1992.

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Reparation, Apologies, Memorials, and Reconciliation

“Nonretributive” (or “restorative”) justice describes a number of policies that eschew punishment for more forward-looking effects, such as social cohesion or reconciliation. Reparation means material compensation for past suffering, while official apologies are symbolic acknowledgements of responsibility offered by governments. Memorials can be part of official acknowledgment, consisting of museums, statues, holidays, plaques and the like. Reconciliation policies vary widely, but have the common goal of social unification, peace, and restoration of ruptured group relations. There is a growing literature on apologies and symbolic policies such as the creation of museums and memorials, along with a more longstanding literature on reparations. Since “reconciliation” is as complicated a concept as “justice,” the work on reconciliation deals with everything from the meaning of the idea to the best ways to achieve it. Nobles 2008 is an effective analysis of what apologies can achieve, although it is peripherally related to what is normally considered transitional justice. Brooks 1999 is one of the most comprehensive surveys of apologies and reparations across cases, while Rubio-Marin 2006 collects more policy-oriented work focused on the role of women as actors and recipients in reparations policies. Sullivan and Tifft 2006 is a more wide-ranging collection dealing with restorative justice within and beyond the scope of transitional justice. Steinlauf 1997 is an excellent and underutilized study that has implications far beyond Poland for the significance of official memory for inclusion, political competition, accountability, and justice. Minow 1998 is one of the most widely known theoretical analyses of reconciliation as a transitional justice goal, while Paluck and Green 2009 presents a social experiment in reconciliation in Rwanda. Stover and Weinstein 2004 is an important contribution on the relationship of justice and reconciliation, with both thematic and case-based chapters.

  • Brooks, Roy L., ed. When Sorry Isn’t Enough: The Controversy over Apologies and Reparations for Human Injustice. New York: New York University Press, 1999.

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    A collection addressing crimes that seem to require reparation or apologies. Surveys the history of those policies from World War II to the present. Essays argue that redress for historical cases such as slaves and comfort women is difficult, but also that there is a widespread lack of official recognition of suffering and apologies.

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  • Minow, Martha. Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence. Boston: Beacon, 1998.

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    A history of attempts to deal with mass violence, an argument that therapeutic policies can be effective for victims, perpetrators, and third parties. Suggests that truth commissions can be more effective at reconciliation than prosecution, provided that restoration of human dignity is prioritized over retribution.

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  • Nobles, Melissa. The Politics of Official Apologies. New York: Cambridge University Press, 2008.

    DOI: 10.1017/CBO9780511756252Save Citation »Export Citation »E-mail Citation »

    Compares official apologies in the United States, Australia, Canada, and New Zealand. Focuses on their effect on national membership, by generating a discourse about past suffering that can lead to inclusion for formerly peripheral indigenous peoples.

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  • Paluck, Elizabeth Levy, and Donald P. Green. “Deference, Dissent, and Dispute Resolution: An Experimental Intervention Using Mass Media to Change Norms and Behavior in Rwanda.” American Political Science Review 103.4 (2009): 622–644.

    DOI: 10.1017/S0003055409990128Save Citation »Export Citation »E-mail Citation »

    An experiment in fostering reconciliation through teaching acceptance of dissenting views in Rwanda. Tests the impact of a radio show designed to encourage the toleration of divergent viewpoints in Rwandan villages, and finds that it appears to have a positive impact on toleration.

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  • Rubio-Marin, Ruth, ed. What Happened to the Women? Gender and Reparations for Human Rights Violations. New York: Social Science Research Council, 2006.

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    A publication of the International Center for Transitional Justice, exploring women’s role in courts and truth commissions. Argues that women are doubly marginalized under authoritarian regimes and following violent conflict. Advocates including gender issues into existing reparations programs.

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  • Steinlauf, Michael. Bondage to the Dead. Syracuse, NY: Syracuse University Press, 1997.

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    An analysis of official memory of the holocaust in Communist-era Poland. Demonstrates through an authoritarian case the importance of official memory and memorialization for current political conflicts, and traces several stages of broadly and narrowly inclusive memory in Poland, from denial of responsibility to limited and instrumental acceptance of some involvement in the Holocaust.

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  • Stover, Eric, and Harvey M. Weinstein, eds. My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity. New York: Cambridge University Press, 2004.

    DOI: 10.1017/CBO9780511720352Save Citation »Export Citation »E-mail Citation »

    A collection of chapters on the possibilities and limitations of justice mechanisms for reconciliation and social reconstruction.

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  • Sullivan, Dennis, and Larry L. Tifft, eds. Handbook of Restorative Justice: A Global Perspective. New York: Routledge, 2006.

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    Collection of essays on many aspects and applications of restorative justice theory. Goes beyond the criminal justice context, where restorative justice theory originated, to apply the approach to other facets of social interaction and family life. Some essays are outside the scope of transitional justice, but some are directly relevant.

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Regions

The division of transitional justice literature into regions has a chronological logic as well as a substantive one. Waves of democratization reached different geographic regions at different times, so some areas did not begin to confront transitional justice questions until well after others, but many countries in a single region might face the same challenges at the same time. As transitional justice policies often continue well into the consolidation phase of new democracies, this logic becomes less compelling over time. The substantive logic of regional distinction is that regional comparisons are easier to make than across regions, and that similar policies were often enacted within one region but not so much in others. Since there have been more and more instances of transitional justice across the world in recent decades, this logic may also be less compelling, and thus there has been an increasing number of cross-regional and comparative studies. Despite this, the regional distinctions in the transitional justice literature have been an important part of how the body of work has developed and built upon itself.

Europe and Japan after World War II

This section contains analysis of postwar transitional justice in western Europe and Japan, beginning when it was not yet called transitional justice. The most important and best-recorded case of transitional justice is the Nuremberg Trials in Germany. A brief and substantive introduction to this is found in Marrus 1997. Montgomery 1957 and Mason 1952 are analyses not long after the fact of domestic transitional justice in Germany, Japan, and the Netherlands, which surprisingly were not substantially built upon in historical or social science literature until very recently. The international sphere in Japan is covered adequately by Piccigallo 1979. Herf 1997 is the most extensive comparison of East and West German transitional justice, although West Germany itself has been covered extensively elsewhere. Elster 2006 and Deak, et al. 2000 both provide excellent coverage of policy variation among European states after the war, the former from a social science perspective and the latter from a historical perspective.

  • Deák, István, Jan T. Gross, and Tony Judt, eds. The Politics of Retribution in Europe: World War II and Its Aftermath. Princeton, NJ: Princeton University Press, 2000.

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    A collection of chapters on transitional justice in Hungary, Poland, Belgium, the Netherlands, France, and Czechoslovakia. Comparable to Elster 2006 but deals more closely with east European countries.

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  • Elster, Jon, ed. Retribution and Reparation in the Transition to Democracy. Cambridge, UK: Cambridge University Press, 2006.

    DOI: 10.1017/CBO9780511584343Save Citation »Export Citation »E-mail Citation »

    Chapters in Section II explore transitional justice in Germany, France, Austria, Hungary, Scandinavia, Belgium, and the Netherlands after World War II.

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  • Herf, Jeffrey. Divided Memory: The Nazi Past in the Two Germanys. Cambridge, MA: Harvard University Press, 1997.

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    Historical study of debates over dealing with the Nazi past in East and West Germany. Very detailed accounts of political negotiations, competition, and elite decisions, and analysis of their impacts on later German society.

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  • Marrus, Michael R., ed. The Nuremberg War Crimes Trial 1945–46: A Documentary History. Boston: Bedford, 1997.

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    A collection of documents and commentary from the Nuremberg War Crimes Trial. An excellent introduction to the IMT, and one suitable for all levels of students and researchers.

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  • Mason, Henry L. The Purge of Dutch Quislings: Emergency Justice in the Netherlands. The Hague: Martinus Nijhoff, 1952.

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    Traces the end of the war and various purges in the Netherlands after World War II. Unique in its inclusion of nearly all the many purges enacted in the country, including political offices, newspapers, private companies, and professional organizations.

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  • Montgomery, John D. Forced to be Free: The Artificial Revolution in Germany and Japan. Chicago: University of Chicago Press, 1957.

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    A comparison of transitional justice mechanisms, primarily purges, in postwar Germany and Japan, from someone who worked for a time in the occupation. While the German case is well documented elsewhere, the Japan section is invaluable.

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  • Piccigallo, Philip R. The Japanese on Trial: Allied War Crimes Operations in the East, 1945–1951. Austin: University of Texas Press, 1979.

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    Analysis of the thousands of trials of Japanese war criminals after World War II, few of which have been dealt with in other works. Argues that overall the trials complied with high standards of justice, a conclusion that has been criticized elsewhere. The book, however, claims to be primarily an objective history, and for the topics it treats—the trials themselves—it is a useful source.

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Latin America

While the problems to be handled through transitional justice in postwar Europe were substantial and involved war crimes, occupations, collaboration, and genocide, the authoritarian regimes and elites had (in western Europe) been swept out of power. In Latin America, starting in the 1980s, in contrast, transitional justice policies had often to deal with the fact that authoritarian military elites still wielded power, or could threaten to do so. For this reason, in Latin America we find more aborted and incomplete trial processes, as well as more truth commissions and historical investigations. Nino 1998 (cited under Causes) presents firsthand narrative or early attempts to prosecute the former military leaders of Argentina, and Acuna 2006 compares this case with Chile to show how the strategies of political leaders can shape the course of the transition. De Brito and Barahona 2001 comparatively analyzes transitional justice in the Southern Cone, and Sikkink and Walling 2006 demonstrates the impact of transitional justice innovations in Argentina at the global level. Theidon 2006, a village-level anthropological study of reintegration, offers a helpful comparison to the local justice and reconciliation attempts discussed in Reparations, Apologies, Memorialization, and Reconciliation.

  • Acuña, Carlos H. “Transitional Justice in Argentina and Chile: A Never-Ending Story?” In Retribution and Reparation in the Transition to Democracy. Edited by Jon Elster, 206–238. Cambridge, UK: Cambridge University Press, 2006.

    DOI: 10.1017/CBO9780511584343Save Citation »Export Citation »E-mail Citation »

    Investigates the political dynamics surrounding transitional justice in the newly democratic regimes of Argentina and Chile. Argues that different strategies pursued by political elites helped shaped the ongoing process and its impact on democratization.

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  • De Brito, Alexandra Barahona. “Truth, Justice, Memory, and Democratization in the Southern Cone.” In The Politics of Memory: Transitional Justice in Democratizing Societies. Edited by Alexandra Barahona De Brito, Carmern Gonzaléz Enríquez, and Paloma Aquilar, 119–160. New York: Oxford University Press, 2001.

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    A regionally comparative study of the interactions between transitional justice and democratization in Latin America’s Southern Cone.

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  • Nino, Carlos Santiago. Radical Evil on Trial. New Haven, CT: Yale University Press, 1998.

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    A firsthand account of political, moral, and legal factors in Argentina’s struggles over transitional justice. Philosophically informed and an excellent resource on political negotiations early in Argentina’s transition.

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  • Popkin, Margaret. Peace Without Justice: Obstacles to Building the Rule of Law in El Salvador. University Park: Pennsylvania State University Press, 2000.

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    Investigates the interaction between international, political, and civil society involvement in judicial reform, the protection of human rights, and accountability in El Salvador.

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  • Sikkink, Kathryn, and Carrie Booth Walling. “Argentina’s Contribution to Global Trends in Transitional Justice.” In Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice. Edited by Naomi Roht-Arriaza and Javier Mariezcurrena, 301–324. New York: Cambridge University Press, 2006.

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    Analyzes Argentina’s role in generating a “justice cascade,” a rapid shift toward new norms of accountability. Particularly interesting study of the role of NGOs at the domestic and international levels in creating new opportunity structures for similar social movements elsewhere.

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  • Theidon, Kimberly. “Justice in Transition: The Micropolitics of Reconciliation in Postwar Peru.” Journal of Conflict Resolution 50.3 (2006): 433–457.

    DOI: 10.1177/0022002706286954Save Citation »Export Citation »E-mail Citation »

    Anthropological study of mechanisms intended to reintegrate former combatants, many of whom had been coerced into fighting, into their home villages.

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Eastern Europe

Eastern European democracies faced a common challenge of managing the legacy not only of past injustices and political decisions under Communist Party rule, but of massive archives of secret police files as well. As the literature on transitional justice in Latin America often dealt with criminal trials and truth commissions, the literature on eastern European transitional justice has contributed extensive analysis of the use of these files for Screening and Lustration. The best-covered cases are Germany and Czechoslovakia/Czech Republic, with Hungary and Poland often discussed as partial or incomplete cases of transitional justice. For work focused on the International Criminal Tribunal for the Former Yugoslavia, refer also to International Trials. Rosenberg 1995 is a sweeping account of the underlying problems and complications of dealing with the Communist past, and one that introduces many of the fundamental dilemmas faced by policymakers. Garton Ash 1998 is a commentary on reading one’s own secret police file, which similarly raises important questions about memory, evidence, and truth. McAdams 1997 contains several chapters that deal well with the conflicts between legal and political imperatives in post-Communist regimes. Misztal 1999 addresses the ultra-politicized nature of transitional justice in Poland, and Subotić 2009 investigates the political instrumentalization of international transitional justice mechanisms in the Balkans. Verdery 1994 is a classic analysis of the difficulties of property restitution in a single village. Stan 2009 is one of the most up-to-date and inclusive surveys of eastern Europe, and Nalepa 2010 is one of the few works to make use of formal models to account for policy choices and timing in post-Communist democracies.

  • Garton Ash, Timothy. The File: A Personal History. New York: Vintage Press, 1998.

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    A long-time researcher and commentator on eastern Europe reads the file collected on him by the East German secret police. Engaging narrative with insightful observations about the nature of the files, official memory versus his own, and the ambiguous nature of his access to the file.

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  • McAdams, A. James, ed. Transitional Justice and the Rule of Law in New Democracies. Notre Dame, IN: University of Notre Dame Press, 1997.

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    Many chapters in this collection focus on eastern European states, both those well known for carrying out transitional justice and those whose policies have been mired in political conflict. Especially useful research on Germany, Poland, and Hungary.

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  • Misztal, Barbara A. “How Not to Deal with the Past: Lustration in Poland.” European Journal of Sociology 40.1 (1999): 31–55.

    DOI: 10.1017/S0003975600007268Save Citation »Export Citation »E-mail Citation »

    An important study of the interrelationship between political competition and transitional justice in a country where dealing with the past became a major axis of political competition.

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  • Nalepa, Monika. Skeletons in the Closet: Transitional Justice in Post-Communist Europe. New York: Cambridge University Press, 2010.

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    Develops and applies formal models of elite behavior to explain why authoritarian leaders step down from power and often go unpunished by opposition leaders, and why former authoritarian elites sometimes support transitional justice measures.

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  • Rosenberg, Tina. The Haunted Land: Facing Europe’s Ghosts after Communism. New York: Random House, 1995.

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    Through extensive interviews with the major actors, Rosenberg chronicles trials, lustration, and other transitional justice policies in Poland, Germany, and Czechoslovakia. Particularly notable for critiques of lustration and an interview with General Jaruzelski, the former Polish leader.

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  • Stan, Lavinia, ed. Transitional Justice in Eastern Europe and the Former Soviet Union: Reckoning with the Communist Past. New York: Routledge, 2009.

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    A collection of case studies of many eastern European states, including Albania, Slovenia, and Romania, which are not often covered in other work.

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  • Subotić, Jelena. Hijacked Justice: Dealing with the Past in the Balkans. Ithaca, NY: Cornell University Press, 2009.

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    An investigation of the strategic, instrumental use of international models of transitional justice by domestic political actors in the Balkans.

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  • Verdery, Katherine. “The Elasticity of Land: Problems of Property Restitution in Transylvania.” Slavic Review 53.4 (1994): 1071–1109.

    DOI: 10.2307/2500847Save Citation »Export Citation »E-mail Citation »

    Anthropological study of property restitution in a Romanian village. Encapsulates many of the larger problems of changing ownership structures after Communism by looking at property whose borders, uses, and ownership titles have evolved over time.

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Africa

Much of the literature on transitional justice in Africa has focused on South Africa, and even more narrowly on the South African Truth and Reconciliation Commission (TRC), of which assessments have varied widely. (See also works cited under Truth Commissions.) Rotberg and Thomson 2000 collects theoretical and empirical chapters that range beyond Africa and is mixed in its assessments of the TRC. Many works, such as Chapman and van der Merwe 2008, have been critical of the uneven process, while others, such as Gibson 2006, have nevertheless made positive assessments of the TRC’s effects on South African society. There is also a growing literature on trials and tribunals elsewhere in Africa, including the hybrid international–domestic court in Sierra Leone, discussed by Horovitz 2006. The literature on Rwanda covers all levels of transitional justice, from the international tribunal down to Gacaca courts and less formal mechanisms for reconciliation. See also Peskin 2008 and works cited under International Trials. Longman, et al. 2004, an early study of attitudes toward prosecutions in Rwanda, comes to mixed conclusions about the efficacy of trials for social reconciliation. Lemarchand 2008 provides an excellent and comprehensive history of conflict in the Great Lakes region of Rwanda, Burundi, Congo, and Uganda, with several chapters on transitional justice.

  • Chapman, Audrey R., and Hugo van der Merwe, eds. Truth and Reconciliation in South Africa? Did the TRC Deliver? Philadelphia: University of Pennsylvania Press, 2008.

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    A collection of chapters measuring and assessing the South African TRC’s accomplishments. Highly critical of the expansive promises made and the relatively narrow concrete results.

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  • Gibson, James L. Overcoming Apartheid: Can Truth Reconcile a Divided Nation? New York: Russell Sage Foundation, 2006.

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    A research project testing whether the activities of the South African TRC have led to reconciliation, and if so, how. Argues that in a narrow meaning of truth, they have produced more reconciled attitudes among some South Africans. Valuable for research findings but also for its discussion of the methodology of assessing impacts.

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  • Horovitz, Sigall. “Transitional Criminal Justice in Sierra Leone.” In Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice. Edited by Naomi Roht-Arriaza and Javier Mariezcurrena, 43–69. New York: Cambridge University Press, 2006.

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    Study of a hybrid international and domestic criminal court in Sierra Leone. Assesses its likely impact on the rule of law, its accountability, and its weaknesses and necessary connections to broader social and economic reforms.

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  • Lemarchand, René. The Dynamics of Violence in Central Africa. Philadelphia: University of Pennsylvania Press, 2008.

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    Comprehensive history of ethnic and regional violence in Rwanda, Burundi, Uganda, and Congo, with chapters 4, 5, and 7 being particularly relevant for transitional justice.

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  • Longman, Timothy, Phuoung Pham, and Harvey Weinstein. “Connecting Justice to Human Experience: Attitudes toward Accountability and Reconciliation in Rwanda.” In My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity. Edited by Eric Stover and Harvey Weinstein, 206–225. New York: Cambridge University Press, 2004.

    DOI: 10.1017/CBO9780511720352Save Citation »Export Citation »E-mail Citation »

    Presents the results of a survey of Rwandan attitudes suggesting that Rwandans are generally positive about trials on all levels, but that attitudes vary significantly by ethnic group, and that attitudes about retribution don’t seem to be related to attitudes about reconciliation.

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  • Peskin, Victor. International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation. New York: Cambridge University Press, 2008.

    DOI: 10.1017/CBO9780511790584Save Citation »Export Citation »E-mail Citation »

    Comparative analysis of the design and implementation of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. Uses interview and other evidence to argue that the tribunal in Rwanda was shaped by ongoing political competition within Rwanda and between Rwanda and international organizations.

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  • Rotberg, Robert I., and Dennis Thomson, eds. Truth v. Justice: The Morality of Truth Commissions. Princeton, NJ: Princeton University Press, 2000.

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    A collection of empirical and theoretical essays on truth commissions. Relevant to Africa because much of the work either focuses on South Africa or takes the TRC as a starting point for analysis.

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  • South African Truth And Reconciliation Commission.

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    The official site of the South African TRC. Contains founding legal documents, the final TRC report, and many hearing transcripts. The first place to go for research on the TRC.

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LAST MODIFIED: 11/29/2011

DOI: 10.1093/OBO/9780199756223-0052

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