Transitional Justice

by

Matt Murphy

• LAST REVIEWED: 31 March 2016
• LAST MODIFIED: 31 March 2016
• DOI: 10.1093/obo/9780199756223-0052

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. Williams, et al. 2012 offers a range of theoretical and empirical studies that helpfully incorporate 21st-century patterns and includes compensation and reparations, along with more retributive policies.

• 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.

  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.

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

  DOI: 10.1017/CBO9780511607011

  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.

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

  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.

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

  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.

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

  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.

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

  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.

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

  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.

• Williams, Melissa, Rosemary Nagy, and Jon Elster, eds. Transitional Justice. NOMOS Vol. LI. New York: New York University Press, 2012.

  A wide-ranging and theoretically informed collection of essays on theories, forms, policies, and effects of transitional justice. Particularly insightful discussions of compensation, reparations, and the relationship between transitional and normal justice.