Politologija ISSN 1392-1681 eISSN 2424-6034
2024/4, vol. 116, pp. 109–151 DOI: https://doi.org/10.15388/Polit.2024.116.3
Lina Strupinskienė
Vilnius university, Institute of International Relations and Political Science
E-mail: lina.strupinskiene@tspmi.vu.lt
Abstract. In an era marked by numerous conflicts and human rights violations, this article provides a comprehensive review of transitional justice studies, assessing the evolution of the field and exploring potential future directions. It addresses several critical questions: How has the field of transitional justice developed, and what factors have influenced its changes over time? What tools and techniques have been employed, and what challenges and achievements have they revealed? What significant lessons and recommendations have emerged from existing studies, and why are they important? Finally, the article also considers normative aspirations for future cases of transitional justice, particularly in the context of Russia’s war against Ukraine. This analysis underscores the belief that academic self-reflection is valuable not only for students and researchers but also for national and international actors involved in implementing transitional justice strategies.
Keywords: Transitional Justice, Russian war in Ukraine, Sustainable Peace and Reconciliation, Conflict Resolution
Santrauka. Šiame straipsnyje išsamiai apžvelgiamos pereinamojo laikotarpio teisingumo studijos, įvertinama srities raida ir galimos ateities tyrimų kryptys. Jame nagrinėjami keli esminiai klausimai: Kaip laikui bėgant vystėsi pereinamojo laikotarpio teisingumo sritis ir kokie veiksniai turėjo įtakos jos pokyčiams? Kokios pereinamojo laikotarpio teisingumo priemonės buvo taikytos ir kodėl, su kokiais esminiais sunkumais jos susidūrė ir ko padėjo pasiekti? Kokias svarbias pamokas ir rekomendacijas atskleidė egzistuojantys tyrimai? Galiausiai straipsnyje taip pat aptariami normatyviniai pereinamojo laikotarpio teisingumo siekiai būsimiems teisingumo užtikrinimo atvejams, ypač Rusijos atsakomybei už karą Ukrainoje. Tokia akademinė savirefleksija vertinga ne tik studentams ir tyrėjams, bet ir nacionaliniams bei tarptautiniams veikėjams, dalyvaujantiems įgyvendinant pereinamojo laikotarpio teisingumo strategijas.
Reikšminiai žodžiai: pereinamojo laikotarpio teisingumas, Rusijos karas Ukrainoje, tvari taika ir susitaikymas, konfliktų sprendimas.
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Received: 25/01/2024. Accepted: 15/09/2024
Copyright © 2024 Lina Strupinskienė. Published by Vilnius University Press. This is an Open Access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.
The field of transitional justice (TJ) encompasses the processes and mechanisms designed to address mass human rights violations and promote peace and stability in postconflict societies. TJ has gained international prominence as a crucial response to such violations, becoming a normative and essential component in both global and local peacebuilding efforts. Rosemary Nagy describes TJ as a ‘global project’ with local, national, and international dimensions,1 while Jelena Subotić emphasizes its necessity for lasting peace.2 Its formalization through United Nations pillars, including the right to truth, justice, reparation, and nonrecurrence,3 highlights an international consensus on the importance of transitional justice in reckoning with violent pasts.
However, despite its established status, there remain significant uncertainties and debates within the field. We still grapple with fundamental questions about the effectiveness of TJ,4 lacking common concepts and agreed definitions of justice, peace, and reconciliation.5 The timing and sequencing of TJ efforts, as well as their assessment, are contentious, especially given that these processes are often embedded in broader social, economic, and political transformations, making it challenging to isolate the effects of individual instruments. Moreover, the diversity of TJ instruments complicates comparative studies and the development of a unified vocabulary.6 Given these complexities and the nascent, rapidly developing nature of the field, largely driven by practitioners with limited time for academic reflection, comprehensive overviews like this one are crucial. This article aims to provide a thorough examination of the development of transitional justice practice and research, delineating the most important lessons learned for future cases, particularly in the context of the ongoing Russian war in Ukraine.
This article addresses several critical questions to structure its comprehensive review: (1) How has the practice of transitional justice evolved, and what key factors have influenced its changes over time? The first section examines the evolution of transitional justice practice, exploring how it has developed through distinct historical phases (three waves outlined by Ruti G. Teitel7 and beyond) and identifying the key factors that have influenced these changes, including significant political conditions such as the aftermath of World War II, the Cold War, and the fall of authoritarian regimes, which have shaped the direction and focus of transitional justice efforts. Additionally, it highlights the broadening scope of transitional justice, with the inclusion of arts, culture, and various nonstate actors, reflecting a move from state-led initiatives to more inclusive practices. (2) What tools and techniques have been employed, and what challenges and achievements have they revealed? The second section examines the arsenal of tools and techniques commonly employed in transitional justice processes, reviewing the appropriate utilization of these instruments, and shedding light on the nuances and challenges inherent in their application. (3) What significant lessons and recommendations have emerged from existing studies, and why are they important? The third section scrutinizes the prevailing research trends within the field of transitional justice. By critically analyzing the existing body of work, it uncovers key thematic areas, theoretical developments, and persistent challenges. This section aims to highlight the direction of contemporary research, pinpoint recurring issues, and present proposed solutions. By learning from past mistakes and addressing new challenges, it seeks to provide a comprehensive understanding of the evolving landscape of transitional justice research and offer constructive pathways for future inquiry. (4) What are the normative aspirations for future cases of transitional justice, particularly in the context of Russia’s war against Ukraine? The final section focuses on the case of the ongoing war in Ukraine. Drawing on the experiences and lessons learned from this context, it discusses potential recommendations for future transitional justice endeavors. This case study provides a forward-looking perspective, offering insights into the intricate interplay between theory and practice in a real-world setting.
In conclusion, this article provides a comprehensive overview of the transitional justice field, encompassing theoretical underpinnings, practical implementations, and current research directions. Through an exploration of the field’s historical development, critical examination of existing paradigms, and discussion of the most important lessons for the future case study of transitional justice in Ukraine, it offers a valuable resource not only for students and researchers of transitional justice but also for national and international actors involved in implementing transitional justice strategies.
In its broadest sense, transitional justice refers to ways in which societies emerging either from conflict or authoritarian past reckon with a legacy of massive human rights violations. Perhaps the most important document defining transitional justice and explaining the main components of its policy is the former UN Secretary-General’s report “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies.” It defines transitional justice as “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.”8 Conceptually, there’s little agreement on whether transitional justice has four pillars or components (truth, justice, reparations and guarantees of nonrecurrence), which then lead to reconciliation, or five pillars/components including reconciliation as one of them.9 Gissel, for example, also mentions another additional pillar as described in the UN Secretary-Generals’ guidance note – national consultations, but this addition is generally not reflected in other regional or global policy documents.10 All of the abovementioned pillars on occasion overlap with facets of the other aspects of pillars, at least to some degree. However, at the same time, they can be developed and implemented alone without specific reference or dependence on the other pillars or component parts.
According to Ruti G. Teitel, who has attempted to trace the historical pursuit of justice in periods of political flux, transitional justice has experienced three phases of development since the end of the Second World War. Nuremberg and Tokyo tribunals represent an extraordinary foundational stage, while post-1989 transitions in Latin America and Eastern Europe marked a second wave. The third, or steady-state, phase of transitional justice is associated with contemporary conditions of persistent conflict in which transitional justice has moved from being the exception to the norm.11
To begin with, the post-WWII period marked an initial phase in the history of transitional justice, characterized by exceptional political conditions: Germany’s diminished sovereignty, the victory of the Allies, the seizure of all necessary archival documents, existing evidence, and the capture of alleged war criminals. These circumstances enabled the establishment of the Nuremberg and Tokyo tribunals to address Nazi crimes. However, these conditions were extraordinary and did not persist. Soon after the war, international cooperation, war crimes trials, and sanctions waned. Beginning in the 1950s, the Cold War and a stable bipolar balance of power led to a general political equilibrium and an impasse on the question of transitional justice.12
The second wave of transitional justice coincided with the wave of political transformations throughout Eastern and Central Europe, Latin America, and Africa in the late 1980s and early 1990s. Transitional justice at the time was mainly concerned with the legacy of authoritarianism and repressive regimes so that transition to democracy would run smoothly.13 Because the newly created states were fragile, transitional justice had to be implemented cautiously, in order not to endanger the political transformation. Therefore, there was a visible policy change, shifting from prosecutions to truth-seeking. The signature institution of the Second wave of transitional justice is the Truth Commission.
Finally, the Third wave is characterized by immense expansion and normalization of the field. If previous TJ efforts were primarily state-owned and controlled, modern transitional justice encompasses different actors, tools, and techniques often used at the same time, sometimes (e.g., ICTY) even before the conflict is over. For example, even arts and culture began being understood as sources of potential contribution to transitional justice due to their unique ability to engage individuals and communities in distinctive ways of apprehending and transforming the world, for example, they can be crafted to support people to stay present to that which is otherwise too painful to face, assist in the memory of destruction; help to mourn losses meaningfully, and empathize with the suffering of others.14
Dustin N. Sharp claims that despite the normalization of transitional justice, some of its aspects remained on the periphery. Thus, for example, transitional justice continued to privilege civil and political rights over economic and social rights, international rules and standards over local and cultural norms and practices, and legal and technocratic solutions over political and contextual ones. He argues that a new phase of the “fourth generation” of transitional justice has arisen, characterized in part by an increased willingness to grapple with those issues that have historically stayed at the periphery of transitional justice concerns, particularly economic violence and economic justice.15 To sum up, we see that the practice of transitional justice has moved towards diversification of measures, inclusion of new actors, and from being a primarily state-led initiative towards encompassing broader segments of society. In other words, from a strong focus on formal and judicial measures, primarily, international criminal tribunals, we moved towards a wide variety of instruments, tools, and techniques that are best designed to suit the different goals of transitional justice.
The 2004 UN Secretary-General report “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies” identifies the most important transitional justice mechanisms: prosecutions, truth-seeking, institutional reform, reparations, vetting, and dismissals, or a combination thereof. Following this report, other international organizations, government agencies, and NGOs have largely adopted these same mechanisms in their own transitional justice models.16 According to Gissel, the types of mechanisms mentioned in the Secretary-General report were eventually elevated to core or essential status, whereas other TJ mechanisms (e.g., amnesty, apologies, art, curriculum development, memorialization, and (neo)traditional rituals) have not been established as fulfilling an international legal right or duty. She describes this as a “two-tier model,”17 where the first tier consists of a closed list of essential mechanisms with specific design, procedural, and performance criteria that should ideally be implemented comprehensively and holistically. The second-tier mechanisms are more flexible, with an open list that can include new mechanisms as we address emerging challenges and adapt to contextual conditions. This section examines the arsenal of tools and techniques commonly employed in transitional justice processes and discusses their utilization as well as the challenges inherent in their application.
Trials. The trend of holding individuals accountable for serious violations of international law began with the Nuremberg Trials. The primary aims of these trials are to ensure justice for victims, deter future crimes, and reinforce international legal norms. Prosecution methods have varied depending on the specific context. In the mid-90s, the UN Security Council established two international ad hoc tribunals, the ICTY (International Criminal Tribunal for the former Yugoslavia) and the ICTR (International Criminal Tribunal for Rwanda), under Chapter VII of the UN Charter. These ad hoc tribunals, created specifically for particular conflicts, aimed to hold individual perpetrators accountable for mass human rights violations and other international crimes such as genocide, war crimes, and crimes against humanity. They operated outside the countries where the crimes were committed and were international in their character, personnel, and the law applied. In addition to the ad hoc tribunals, there is the International Criminal Court (ICC), a permanent court established by the Rome Statute in 2002. The ICC functions similarly to the ad hoc tribunals but is not part of the UN system. It prosecutes individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. International ad hoc tribunals as well as the ICC faced criticism for their lengthy timelines, complex deliberative processes, high costs, selectivity, and being too removed from the crime scenes, making it less relevant to the affected populations.18 Hybrid tribunals, such as those in Cambodia and Sierra Leone, have been established to address these shortcomings. These tribunals are located where the atrocities occurred, involve more local personnel, and use both domestic and international law in proceedings. Local courts, like those in Chile, Argentina, and Peru, are generally considered the most desirable option. The international community typically intervenes only when local systems are unwilling or unable to deliver justice. Three major lessons have emerged from years of prosecuting core international crimes. First, international justice efforts should be structured to build local capacity and leave a lasting legacy.19 Second, effective communication and outreach are essential.20 The impact of courtroom proceedings does not automatically extend to the lives of ordinary people, so it is crucial that justice is seen and experienced by the communities affected. Third, the expectations of what tribunals can achieve should be managed realistically. It is often assumed that international courts and tribunals should pursue ambitious goals such as reconciliation or comprehensive justice. However, the field of transitional justice still struggles to clearly define the precise purposes of its various processes. Expectations are frequently set too high, necessitating a clearer understanding of what specific approaches to transitional justice can realistically accomplish.21 Research has shown that including these ambitious goals in the mandate or communicating them to the public may actually undermine the court’s effectiveness. When people expect too much, they may become disillusioned with the process, as courts alone cannot achieve these broad, transformative goals. Societal transformation and healing require a coordinated effort among various transitional justice mechanisms, working together as part of a holistic approach.22
Truth Commissions. Trials can only prosecute a small fraction of perpetrators, by their very nature courts are slow and deliberative (which is a good thing), whereas truth commissions became important to fill the gaps left by trials. According to Joanna R. Quinn, admitting the truth about past events and recognizing the claims of others in this regard, and publicly admitting to and accepting a knowledge of these events, is critical to the process of reckoning with the past.23 Truth commissions give victims a voice, establish the identity of perpetrators (condemnation, shaming, prevention of further serving in security forces, diminishing their social and political power, good ad-on for trials), they also tell a larger story about the history of crimes, place them in context, and explain why they occurred. TCs are also important in terms of prevention, as they recommend a set of measures designed to ensure violations would not occur again. They are official bodies, established by a presidential decree or by statute that are set up to discover the faith and whereabouts of victims and uncover the causes, nature, and effects of gross violations of human rights. A truth commission (1) is focused on past, rather than ongoing, events; (2) investigates a pattern of events that took place over a period of time; (3) engages directly and broadly with the affected population, gathering information on their experiences; (4) is a temporary body, intending to conclude with a final report; and (5) is officially authorized or empowered by the state under review.24 According to Priscilla B. Hayner, at least 40 truth commissions have been in operation from 1974 to the end of 2009, the strongest examples – South Africa, Guatemala, Peru, Timor-Leste, and Morocco. While there is much in common between these various commissions, their specific investigatory mandates and powers have differed considerably, reflecting the needs, possibilities, and political realities of each country. Several important lessons have emerged over the years from truth-seeking practices. First, majority of authors agree regarding the importance of a victim-centered approach that focuses on placing the experiences, needs, and perspectives of victims at the center of the commission’s processes and outcomes.25 This approach seeks to ensure that the truth-telling and reconciliation processes acknowledge and address the suffering of victims, and prioritize their voices in shaping the commission’s work. Second, many also stress the need for more empirical studies on the actual short-term and long-term effects of truth commissions. Existing empirical data demonstrate that many claims about the beneficial effects of truth commissions are unsubstantiated.26 According to Saskia Nauenberg, truth commissions have increasingly relied on rationalized myths about the value of truth telling: (1) truth telling will lead to reconciliation, (2) knowing how human rights violations occurred will prevent future violence, (3) establishing the truth is a form of justice, and (4) truth commissions can produce a complete and objective account of the truth, despite inconclusive evidence of their effectiveness.27 As a consequence, much like with courts and tribunals, unrealistic expectations are a major issue confronting truth commissions, and unfulfilled assumptions have had severe consequences for survivors of human rights abuses.28 For example, many truth commissions have relied on the idea of an essential truth despite the fact that what constitutes truth varies according to the respondent and context. In contentious postconflict environments, the “truth” is typically fraught with sharply conflicting and political versions of the past.29 Multiple, incompatible, and subjective memories of violence suggest that it is impossible for testimony from a truth commission to provide a single and accurate account of past human rights abuses.30 Joanna R. Quinn and Mark Freeman note that while truth commissions are often seen as essential for social and individual catharsis, they can also exacerbate social or political divisions and risk retraumatizing individuals. They are not panaceas but rather one of many mechanisms needed to address a legacy of mass abuse, while truth commissions have achieved some important goals, they often require more time, resources, and better management.31
Reparations. Reparations provide the material form (e.g., monetary payments, resources) of the recognition owed to fellow citizens whose fundamental rights have been violated. In the light of the difficulties and deficiencies that normally accompany prosecutions and of the potential charge that truth-telling is “cheap talk,” reparations buttress efforts aimed at recognition by demonstrating that the transitional government has made a sufficiently serious commitment to justice and that it is willing to invest resources, and in well-crafted programs, by giving beneficiaries the sense that the state has taken their interests to heart.32 Reparations can be ordered, recommended or delivered through a number of mechanisms, e.g., courts, truth commissions, reparation programs, and interstate procedures. In the absence of a reparation program, victims often turn to the courts for redress, both during violence and in its aftermath. Two of the biggest challenges in designing and operating a reparations program are finding sufficient evidence to support claims and securing financial resources. Evidence verification presents numerous problems, including incomplete evidence, the volume of information received, the time period for submissions, different languages, illiteracy among claimants, and fraudulent claims.33 Financing reparations programs is another significant challenge. Claims for justice and compensation are often just one category among many competing demands on public funds, and transitional governments often struggle to arrive at a noncontroversial figure for a just compensation scheme while balancing other important public obligations in an often-shattered postconflict economy. However, according to Adrian Vermeule, even flawed or limited reparations schemes constitute a form of rough justice, which is often better than no justice at all. People accept rough justice when they have no real prospect of receiving complete justice.34 Nevertheless, there have been creative solutions when there is sufficient political will. Two primary funding methods in many transitional contexts are dedicated budget lines and funds, with the former being more successful as they demonstrate a clear political commitment to redressing victims’ suffering.35 Other financial alternatives include microfinancing schemes for victims, special taxes, or seizing assets, though these can be unpopular and present separate implementation issues. Additionally, reparations can be creatively structured and staggered over time to avoid large initial lump sum payments, such as through pensions, university scholarships, or medical coupons for rehabilitation. These measures should be complemented by collective reparations like memorials and essential social provisions such as education, housing, and healthcare. Without these complementary measures, compensation awards may quickly be exhausted on basic services, rather than alleviating victims’ daily suffering and providing new opportunities.36
Institutional Reforms and Vetting, Lustration, and Purges. Institutional reforms are essential for achieving peace and societal stability in postconflict societies. These reforms aim to restore accountability, transparency, and citizen participation in political and bureaucratic institutions, which are often tainted by their role in perpetrating systematic human rights abuses.37 Reform efforts typically include vetting or restructuring security forces and enhancing the independence and effectiveness of the judiciary.38 A prominent example is Security Sector Reform (SSR), which is crucial for protecting citizens’ rights and establishing the rule of law in postconflict settings. This reform often involves integrating former combatants, police, military, secret police, intelligence agencies, and militias into a reformed security sector. For instance, in Bosnia and Herzegovina, following the 1992–1995 conflict, police officers underwent a recertification process under the UN Mission in Bosnia and Herzegovina (UNMIBH), which included vetting through the ICTY database. Additionally, an independent commission vetted all judges and prosecutors in the country after the parliament enacted a criminal code in 2003, concluding in April 2004.39 Scholars agree that coherence between institutional reforms and other transitional justice mechanisms is crucial. These reforms require a long-term strategy, local ownership, and, ideally, should empower citizens, particularly victims and marginalized groups, transforming them from passive victims into active citizens with protected rights who can hold public institutions accountable.40 For example, reforms should be aligned with other transitional justice measures, such as prosecutions, truth-seeking, and reparations, to ensure comprehensive justice and societal reconstruction. Within this broader framework of institutional reforms, vetting, lustration, and purges are critical components. These mechanisms focus on removing individuals associated with the former regime from positions of power and influence, thereby preventing them from serving in the new government. Vetting in the context of transitional justice involves restricting access to public office for members and collaborators of the former regime. This may include outright bans on running for office or publicizing candidates past affiliations to inform voters or nominating bodies. For instance, Albania’s 1995 “Law on Genocide and Crimes against Humanity” barred members of the Politburo, the Central Committee, and the parliament, along with former secret police agents and informers, from positions in government, parliament, judiciary, and mass media. What distinguished this law from a purge was Article 3 of the law, which “excluded those persons who held an enumerated position, but had acted against the official line and distanced themselves publicly.”41 Purges involve the disbanding of entire segments of an old regime’s institutions without distinguishing between leaders (those issuing orders) and rank-and-file members (those following orders).42 Notable examples include the disbanding of the East German Stasi secret police and the judiciary in Panama, where judges loyal to Noriega were either purged or resigned, replaced by new judges with little to no prior judicial experience. Research by Bates, Cinar, and Nalepa documented the prevalence of noncriminal transitional justice mechanisms, such as purges, vetting, and truth commissions, in 84 countries transitioning from civil war or authoritarian rule between 1946 and 2016. They found that vetting of secret collaborators was particularly common in countries transitioning around 1990, mainly in Eastern Europe (Albania, Bulgaria, East Germany, Estonia, Hungary, Latvia, Poland, Slovakia, and Slovenia). Purges of known collaborators were rare and typically occurred in the immediate aftermath of the transition, becoming more popular at the beginning of the third wave of transitions in Latin America during the 1970s and 1980s, and seeing a resurgence after 2005. The timing of vetting unknown collaborators often differs, peaking about ten years posttransition.43 Preliminary research suggests that vetting unknown collaborators may enhance democratic stability by preventing blackmail and reducing the influence of former collaborators in positions of power.44 In contrast, purges and vetting known collaborators often remove elites with valuable expertise, potentially hindering the development of new democracies. Effective vetting of unknown collaborators can thus promote democratic performance more significantly than purges.
Second-Tier Transitional Justice Mechanisms. While the core transitional justice mechanisms – prosecutions, truth-seeking, reparations, and institutional reforms – are critical, there are several other mechanisms that also play a significant role in addressing the legacy of mass atrocities. These second-tier mechanisms include amnesty, apologies, art, curriculum development, memorialization, and (neo)traditional rituals. Although not recognized as fulfilling an international legal right or duty, these approaches offer flexible and context-specific solutions to transitional justice challenges. Amnesty can be a contentious tool, often used to encourage the peaceful transition of power by granting immunity from prosecution to perpetrators of human rights abuses. However, it must be carefully designed to avoid perpetuating impunity and undermining victims’ rights to justice. Viewing amnesties as a complementary measure, rather than a tradeoff, helps control and acknowledge those involved in atrocities. Among various transitional justice mechanisms, amnesties are popular but are most effective when combined with other measures. Scholars Tricia Olsen, Andrew G. Reiter, and Leigh A. Payne, after having analyzed a total of 848 transitional justice mechanisms over nearly four decades, emphasize the importance of a holistic approach, suggesting that a combination of trials and amnesties or trials, Truth Commissions, and amnesties yields the best results.45 Apologies from state officials or perpetrators can provide symbolic recognition of past wrongs and contribute to the healing process. Effective apologies require sincerity and should be accompanied by other reparative measures to ensure they are meaningful. Art in transitional justice can include theater, literature, and visual arts, serving as a powerful means of expressing collective memory and fostering dialogue. It engages communities in reflective processes, although its impact can be difficult to measure. Curriculum development aims to educate future generations about past abuses to prevent their recurrence. Integrating transitional justice themes into educational systems promotes awareness and critical thinking but can face resistance from those who deny or downplay past atrocities. Memorialization involves creating physical spaces or events to remember victims and educate the public about past abuses. Memorials and commemorative events can foster collective memory and acknowledgment, but they must navigate political sensitivities and varying interpretations of history. (Neo)traditional rituals leverage local customs and practices to address past harms, promoting community-based reconciliation. These rituals are culturally resonant and can be more accessible than formal mechanisms but may face challenges in achieving broad acceptance and aligning with international human rights standards. In summary, these second-tier mechanisms offer valuable tools for addressing the complex and varied needs of societies emerging from conflict or repression. Their flexibility allows them to be tailored to specific contexts, making them an important complement to the core transitional justice mechanisms. However, their effectiveness depends on careful design, cultural sensitivity, and integration with broader transitional justice strategies.
Finally, it’s important to stress that no single institutional practice is likely to realize all the normative ambitions of transitional justice, hence they should not be viewed as mere items on a menu but rather as integral elements of a comprehensive and holistic package.46 When employing multiple TJ measures, the interrelation between these institutions becomes crucial. They can be structured to complement each other, but there’s also the potential for undermining effects. Considerations must be given to how gathering evidence can inform the design of reparations, how judiciary reform efforts can align with accountability promotion, and how organizing a truth commission won’t divert resources and attention from prosecutions. A holistic package should reinforce each component. Sequencing is equally vital, as achieving all objectives simultaneously is unrealistic.47 The healing process is intricate and requires small, incremental steps, often involving setbacks and nonlinear progress.
With notable exceptions, the early TJ literature was largely policy-oriented, lacking deep empirical and theoretical currents.48 Debates of the 1980s and 1990s were more likely to focus on the sequencing of TJ, the appropriateness of amnesties (peace vs justice), and the choice among different transitional justice modalities (truth vs justice) than on the blind spots and ideology of the TJ enterprise itself. There was a deep-seated assumption that TJ was inherently ‘good,’ rather than a political and ideological project that might occasionally be ‘part of the problem.’49 However, particularly as the field has been internationalized and institutionalized, there has been a significant growth in academic critique and historically dominant thinking and practice, and a greater willingness to question the nature and suitability of the TJ model to the varied challenges facing postconflict societies. This growing body of critique is far from monolithic, and the critiques vary greatly in terms of their sophistication and nuance, drawing upon a diverse body of critical studies traditions, including critical legal studies, critical race theory, feminist critical theories, indigenous studies, Marxist theory, postcolonial theory, third world approaches to international law, and so on.50
The most important strands of criticism are the following. First, scholars have questioned the ability of transitional justice to achieve its goals,51 arguing that, either the goals were too ambitious to begin with, or that multiple short- and long-term goals of transitional justice sometimes can be at odds with each other, overlapping and undermining each other.52 For example, James Gibson has argued that the Truth and Reconciliation Commission (TRC) in South Africa aimed to promote a common understanding of past violence by emphasizing that “both sides [in the struggle] did bad things.”53 While this approach fostered greater interracial reconciliation, it also highlighted a tension: the TRC’s mandate to address crimes committed in excess of apartheid conflicted with its goal of addressing the broader implications of apartheid itself. Thus, the pursuit of a unified narrative sometimes came at the expense of fully confronting the violence inherent in the apartheid system. Second, it was pointed out that the evidence on transitional justice effects remains mixed and amenable to contradictory interpretations due to the failure to adequately address the issues of measurement and selection. For example, positive societal outcomes, such as peace or reconciliation, that are often treated as major indicators of the success of transitional justice, at least partially, are dependent on multiple political and economic processes, rather than on a single TJ measure. Therefore, trying to assess TJ’s success by measuring levels of peace or reconciliation might measure something else entirely. In addition, qualitative and quantitative differences in state practices of transitional justice make it extremely complicated to do cross-country comparisons of TJ policies.54 Third, scholars have criticized the unequal power dynamics of transitional justice ideology and practice, stressing the technocratic idiom of transitional justice, which tends to depoliticize and obfuscate highly contestable choices, shifting the power balance in favor of international preferences55 or the complex relationship between the modalities of “western” (“paradigmatic”) transitional justice and nonwestern, local or indigenous traditions of justice.56 Transitional justice is rightly being criticized for clumsily applying the same thinking and tools across a range of contexts and transition types as if they were the same thing; and for constituting a form of ideological imperialism, cloaking highly political and contestable choices in depoliticized and technocratic idiom.57 Finally, another critique concerns the focus on “surface” needs at a macro level through a one-dimensional mechanism, not targeting the deeper needs of a population that has been affected by conflict and division.58 Different scholars stress different needs, for example, feminist authors stress violations committed against women and gender inequalities,59 others argue for the inclusion of social and economic crimes and solutions to them,60 while some talk about cultural and everyday violence or other systematic inequalities.61
To begin with, the critical scholarship that drew attention to unequal power dynamics in transitional justice practice and ideology has emphasized the importance of local-level knowledge and initiatives.62 Numerous academics and practitioners are trying to advance strong claims about the cultural relevance, cost-effectiveness, practicality, and victim-centeredness of local transitional justice. This was also very much visible in changes in transitional justice practice, new hybrid tribunals appeared to address the issues faced by purely international ones (SCSL, Cambodia) or countries started experimenting with traditional justice measures (Palaver Huts in Liberia, Gacaca courts in Rwanda, Fambul tok ceremonies in Sierra Leone, etc.). Yet, some argue, that despite addressing some of the concerns, the literature on local TJ remains idealistic and rests on mostly unsupported presumptions about its impact.63 Nascent research regarding local TJ measures points to new problems and challenges, that were not previously well assessed – such as importing local prejudices and stereotypes, power inequalities, foregoing the needs of the minorities, failing to address gender issues, etc. Despite repeated reminders “not to romanticize the local,”64 there continues to be a tendency to approach them uncritically. Issues – power dynamics at play have the potential to distort the process, and lack of research and analysis if they’re more welcomed, more legitimate, and more effective, existing research rarely problematizes this. To address these challenges, a more nuanced approach is required. This could involve rigorous, context-specific research to understand the local dynamics and power structures at play, ensuring that traditional practices are implemented in a manner that genuinely respects and incorporates the needs of marginalized groups. Moreover, engaging in continuous dialogue with local communities, practitioners, and scholars can help identify potential biases and areas for improvement. Ensuring that traditional justice measures are integrated with broader transitional justice frameworks can help mitigate the risks of superficial application and enhance their overall effectiveness. Additionally, establishing mechanisms for ongoing monitoring and evaluation can provide valuable feedback and facilitate adjustments to address emerging issues, ensuring that these practices contribute positively to the transitional justice process.
Furthermore, responding to the critique that TJ focuses on “surface” needs and hasn’t achieved the desired effects of sustainable peace and reconciliation in postconflict societies, some have advocated for a paradigm shift from TJ to “transformative justice,” an ambitious vision brought forward by Wendy Lambourne,65 and subsequently built upon by several scholars.66 For example, Paul Gready and Simon Robins, suggest that the transformative justice approach should take a long-term view, which foregrounds holistic social justice, local agency and participation, and the social and political rather than the legal dimensions of social change.67 In their later work, they draw on theories of change from the field of development studies and try to adapt them to the context of transitional justice. In practice, that would mean replacing a focus on results, attribution, and linearity with a privileging of process, contribution, and complexity,68 including the possibility of negative effects,69 and emphasizing context and timing as vital.70 What can those theories do for TJ – dimensions of influence indicate the need to manage complexity and for patience and preparedness, so that political openings are exploited when they arise. Holistic interventions – suggest the importance of prioritization and sequencing, continuous return of the past in new and unexpected ways, and show a need for deeper, broader, longer TJ.71 Many dimensions of this vision have almost become cliché of TJ and peacebuilding literature, and most of them were encapsulated and endorsed in a Guidance Note on the UN approach to TJ written more than a decade ago.72 In this sense, the critical vision is far from revolutionary. At the same time, TJ practice often falls short of such vision, as it’s rarely well-coordinated, well-planned (part of an overall strategy), or well-resourced.
Finally, Joanna R. Quinn has proposed an interesting idea of thin sympathy, claiming that lack thereof might be the reason why some transitional justice initiatives fail.73 According to her, in long ethnic conflicts, adversaries are indifferent, sometimes even immune, to each other’s anguish not because they have seen too much of it but, rather, because they have been conditioned not to see any of it in the first place.74 Certain preconditions could be developed and put in place that would allow for the durable and robust development of acknowledgment in divided societies. In particular, it targets the very beginning stages of the cognitive development of a basic understanding of the past – not just in perpetrators and victims, but in “everybody else,” who are ultimately outsiders to that past. Although many assume that this understanding already exists, Quinn argues that there’s a significant gap in that kind of perception across different groups. Developing only a basic understanding is far from ideal, it’s the “thinnest” possible response, a very weak form of sympathetic engagement (not “I feel sorry for you,” but instead awareness, recognition, and appreciation) is important.75 She explains, that “thin sympathy” is a basic understanding or knowledge of what has happened in the past. It involves sensitizing a population to recognize the facts of history and how what happened then continues to shape the lived experiences of the people to whom those things happened. This is a particularly interesting idea because the literature tells us that TJ mechanisms will produce something approximating thin sympathy; however, often the reverse is true: thin sympathy could strengthen TJ so that those effects will be even more pronounced.
From day one of the Russian aggression against Ukraine in February 2022, independent investigators and advocates for Transitional Justice started to collect data and evidence of possible war crimes and to use these to hold perpetrators, war criminals, and politically responsible stakeholders accountable. Legal and political accountability through tribunals or domestic courts, or bringing war criminals to justice at the ICC or the International Court of Justice (ICJ) in The Hague, as well as establishing a special tribunal for prosecuting the crime of aggression in Ukraine are just a few possibilities that started with the ICC warrants against President Putin and Commissioner Lvova-Belova in March 2023 and Minister Shoigu and Chief of the General Staff of the Armed Forces Gerasimov in June 2024. At the same time Ukraine’s Prosecutor General’s Office has already opened 137 102 war crimes cases and identified 698 suspects.76 Ensuring justice will be a unique process because it is multilevel and multistakeholder based, using evidence from NGOs, the UN, OSCE, the EU, and other governmental and nongovernmental investigations. According to Anja Mihr, disentangling the array and different levels of stakeholders in this process will be the main challenge for advocates of TJ. The extent to which they manage to organize and lead the various stakeholders toward a structured and sequenced TJ process will determine the success and impact of TJ in consolidating democracy in Ukraine.77 Efforts seeking accountability have marked the beginning of a transitional justice process in Ukraine that could last for decades, regardless of how long this war endures. While the primary focus at the moment is on prosecutions, Ukraine is simultaneously debating and taking steps toward implementing a broader model of transitional justice. This model is based on the four UN Pillars outlined in the UN Secretary-General’s report: prosecutions, reparations, truth-seeking, and institutional reforms (particularly vetting). The overall aim is to hold perpetrators and war criminals accountable, address past injustices and war crimes, vet and lustrate perpetrators and bystanders, and compensate victims, thereby leveraging democratic institutions and processes in Ukraine.78
There are numerous lessons to be learned from existing transitional justice practices and research that could inform the transitional justice strategy in Ukraine. The limited scope of this paper will not allow us to discuss them in full, but some of the most important normative aspects will be addressed briefly.
1) A comprehensive transitional justice strategy is indispensable for fostering lasting reconciliation and rebuilding societies shattered by conflict. Such a strategy, encompassing diverse tools and techniques, ensures a multifaceted approach to addressing the complexities of postwar challenges. Different transitional justice measures should be employed having in mind their different functions and goals, sequencing them properly, and structuring them in a way that they would complement and not undermine each other. Even though at the moment there’s a very strong focus on prosecutions, and some important steps have been taken to ensure victims’ reparations, legal accountability for crimes against humanity is only part of a thorough TJ process. Truth-seeking, institutional reform as well as various “second tier” measures such as memorials and museums, educational initiatives, social media films, theatre plays, novels, academic conferences, online and offline public debates, and reconciliation programs are essential for a comprehensive approach.
2) It’s important to understand that transitional justice is always a political compromise, and there is no automatic guarantee for a certain political or societal outcome, as transitional justice measures can be politically instrumentalized, used, or abused. Anja Mihr and Chiara Pierobon (2024) emphasize that TJ is often at odds with Realpolitik and the desire for vengeance rather than justice. This will likely happen if Ukrainian prosecutors and heads of local commissions of inquire turn a blind eye to ‘good Ukrainians’ and hunt only for ‘bad Russians.’ If the process exclusively targets Russians, it will result in winners’ justice, undermining the trustworthiness and effectiveness of trials and reparations, and jeopardizing Ukraine’s future role in Europe.79
3) There have to be clear (often lower) expectations about the realistic achievements of various transitional justice mechanisms. Navigating the landscape of transitional justice demands a sober acknowledgment of the inherent challenges and limitations associated with each tool. Lowering expectations, hence, is not a concession of failure but a realistic assessment of the intricate nature of postconflict reconstruction. For example, while courts, both international and domestic, are pivotal, it’s crucial to recognize the challenges related to limited possibilities of prosecution ranging from extended timelines and high costs to the objective impossibility of punishing all those guilty of committing atrocities. Stanišić and Simatović case at the ICTY is definitely a case in point. It took 20 years, including a retrial and appeals trial, for the prosecution to finally be able to link the paramilitary activities in Bosnia and Croatia to Serb state security services. Similarly, reparations face the perennial challenge of never fully meeting the magnitude of harm inflicted. The complexity of calculating adequate compensation and the legal and practical difficulties of redistributing confiscated court-assigned assets, especially those held by powerful entities like Russian oligarchs, contribute to the limitations of this tool. Moreover, establishing truth in the aftermath of conflict also proves to be a formidable task, namely because inclusive and deliberative processes may encounter resistance, especially in regions with complex interethnic relations. The gap between ambitious ideals and incremental realities has the potential to produce an unwarranted sense of pessimism, disillusion, and failure, even as overall empirical assessments suggest meaningful impacts.80
4) Outreach is immensely important. Transitional justice measures aim to serve public and political goals, and their success depends on their broader societal impact. Effective TJ requires engaging the public to inform them about the justice process, provide a voice to affected populations, publicize goals and results, and promote inclusiveness and transparency.81 This engagement is crucial for fostering local ownership of the justice process. A disconnect between TJ actions and societal needs can undermine effectiveness, making outreach programs essential. Outreach involves building communication channels with affected communities to raise awareness and understanding and needs systematic planning and support. In the case of Ukraine, effective transitional justice will require robust communication strategies targeting a wide array of domestic groups. This includes engaging directly with victims, internally displaced persons (IDPs), refugees, and individuals from both war-affected and unaffected areas. The aim is to ensure that all those who have suffered, as well as those who have been indirectly impacted, are informed and involved in the justice process. Furthermore, it will be essential to communicate with individuals from occupied territories, including those who may have collaborated with the enemy regime, to address their concerns and integrate their perspectives into the broader justice framework.
In addition to domestic outreach, there will also be a need to engage with the Russian public. This involves addressing and countering the narratives and misinformation that may shape their perceptions of the conflict and the justice process. Effective outreach to the Russian public will be crucial for fostering a more comprehensive understanding of the conflict’s realities and promoting a shared basis for reconciliation and accountability. Johanna R. Quinn suggests that in long ethnic conflicts, adversaries are often indifferent, sometimes even immune, to each other’s suffering because they have been conditioned not to see it in the first place. Therefore, in the initial stages of transitional justice, there should be a focus on developing a basic understanding of the past (awareness, recognition) and sensitizing the population to recognize historical facts and how past events continue to shape the lived experiences of those affected.82 Serbia’s experience demonstrates the complexity and lengthy duration required for shifting attitudes – often decades or more. It is therefore unsurprising that Russian political elites are likely to resist efforts to promote sensitization and will use various means to counteract such initiatives. For instance, Katarina Ristić’s study on media representations of the Perišić and Stanišić trials reveals that Serbian TV stations deliberately avoided broadcasting visuals of non-Serbian victims and footage of atrocities committed by Serbian forces. This deliberate omission highlights how media can influence public perception by suppressing information that could lead to broader acknowledgment of responsibility and coming to terms with the past83. At the same time, social-psychology research has shown that attitude change is possible, but it must come from within one’s own group, focus on content that can provoke emotional reactions (e.g., the “Scorpion’s video” in Serbia showed Serb paramilitaries killing Bosniaks in cold blood), and target potentially more open parts of the population first (e.g., educated, opposition, diaspora84).85
5) Recognize and support the broad range of harms faced by women. A gendered lens for TJ should consider economic and psychological harms, as well as physical ones, ensuring that reparations and social interventions address these issues and ensure the inclusion of women in all phases of justice. Cynthia M. Horne stresses the importance of involving women in forensic investigatory teams, war crime intake personnel, and legal redress groups to create an inclusive justice process. Female judges, lawyers, police officers, doctors, and forensic specialists can make women feel more comfortable sharing their stories, particularly in cases of conflict-related sexual violence (CRSV). In addition, enhanced privacy safeguards and support for CRSV survivors are essential. Drawing on lessons from the ICTY and ICTR, Horne suggests that trials should protect the privacy of CRSV survivors and establish reasonable evidentiary requirements to reduce their trauma and enhance their sense of being heard.86
6) Inclusivity lies at the core of any transitional justice measures, engaging various strata of society to actively participate in the healing process is a must. Private and public actors, alongside the invaluable contributions of nongovernmental organizations (NGOs), play pivotal roles in implementing and sustaining these efforts. There is an overwhelming consensus in the transitional justice literature that local participation needs to be meaningful and empowering and cover all the stages of TJ implementation – from planning to implementing, and assessing the success of any transitional justice initiative.87 International experts should serve the function of mediators and guides, and not the chief stakeholders of those initiatives. Hence, the collaborative involvement of local communities and the strategic sequencing of transitional justice mechanisms serve as critical elements in crafting an effective and sustainable postconflict recovery process.
By integrating these perspectives, Ukraine can develop a more holistic and inclusive TJ strategy that addresses the multifaceted nature of the conflict and its impacts, ensuring a fair and effective justice process that contributes to long-term reconciliation and democratic consolidation.
This article has provided a comprehensive overview of the field of transitional justice, delving into its historical development, practical implementations, and ongoing debates. The exploration of TJ’s evolution reveals a field that has adapted and expanded from its initial state-centric models to incorporate a broader range of actors and approaches. The growing recognition of the importance of arts, culture, and nonstate contributions reflects a move towards more inclusive and holistic practices.
The discussion on TJ tools and techniques highlights both the significant achievements and the inherent challenges in applying these instruments. Effective transitional justice requires a careful balance of immediate needs and long-term goals, with an emphasis on public engagement, transparency, and inclusivity. These elements are crucial for ensuring that justice measures are perceived as legitimate and impactful.
However, the field of transitional justice faces a critical tension between its aspirational goals and the often incremental realities of implementation. As noted, the crisis of legitimacy and effectiveness in TJ can partly be attributed to the disparity between transformative ideals and the practical limitations encountered in fragile postconflict settings. This gap has the potential to foster a sense of pessimism and disillusionment, despite the evidence of meaningful, if modest, impacts in many contexts. Sharp’s proposal for “critically motivated problem-solving theory”88 suggests a path forward by integrating critique with practical, empirically informed policy recommendations. This approach acknowledges the complexity of transitional justice while striving to make incremental progress in addressing deep-seated injustices.
In the specific context of Ukraine, the lessons drawn from both historical and contemporary TJ practices underscore the importance of strategic planning, robust outreach, and adaptability to local dynamics. The challenges faced by Ukraine highlight the need for TJ strategies that are both contextually relevant and flexible enough to respond to evolving circumstances.
Despite the criticisms and challenges faced by transitional justice, its achievements over the past three decades are significant. The field has managed to establish itself academically and normalize the expectation of TJ measures in states undergoing transitions. The entrenchment of rights to truth, justice, and reparations represents a substantial normative change, marking a profound shift from the largely fictitious promises of three decades ago to tangible, enforceable rights for victims.
In conclusion, this article affirms that while transitional justice may not always achieve its most ambitious goals, its incremental successes are crucial and worthy of continued effort. By embracing a critical yet pragmatic approach, we can better navigate the complexities of TJ and contribute to meaningful progress in addressing past injustices and fostering lasting peace.
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