Transitional Justice: How do we learn from human rights violations of the past?
Transitional justice refers to the ways in which states transitioning from a violent or repressive period of their ruling history account for human rights violations of the past and the security of their citizens (Adayaalam, 2018). States in periods of transition include ones emerging from civil war, abandoning genocidal regime structures that oftentimes impose repressive political agendas. Legacies of past trauma, violent warfare, and displaced families haunt victims therefore, it is the state’s responsibility to provide mechanisms in order to achieve justice and reconciliation. The state is encouraged by the international community to prioritize accountability measures and justice for victims of past mass atrocities. Transitional justice aims to re-construct the very institutions that serve as the foundation of a states’ democracy in order to re-ignite flames of hope and trust in citizens by acknowledging both the pain of their trauma and identifying crucial steps to advance the reconciliation process (McEvoy & McConnachie, 2013). These objectives are often impossible to accomplish through a state’s existing judicial systems for a number of systemic reasons, as there may be too many perpetrators that need to be brought to trial, not enough resources, or even a corrupt judiciary that protects the aggressor. International organizations, such as the United Nations, step in at this critical moment to provide foundational pillars that states can use to start a path toward achieving transitional justice (ICTJ). States may hesitate in co-opting approaches of transitional justice as they require a complete investment into finding legitimate responses to the horror and trauma inflicted on victims of conflict (McEvoy & McConnachie, 2013). This may allow their current ruling powers to be placed at the stand and cross-examined to determine the role they played in executing mass human rights violations. Mechanisms of transitional justice are notably vital during these moments, as they attempt to restore citizens’ confidence in their judicial institutions by asking states to put elements of accountability to practice. They seek to recognize the dignity of individuals, address their past trauma, and prevent severe human rights violations from happening again. It is difficult to apply human rights law in a state that is in the process of transitioning from conflict-ridden times into a more peaceful environment. Since the transitional justice field itself is dynamic and interdisciplinary, it evolves to encompass a broad range of human rights violations. This may include understanding psychological trauma and how to better incorporate historical and ancestral injustices into debates concerning transitional justice.
The term ‘transitional justice’ was first coined in the late 1980s as a response to political demands for transformational justice in Latin America and Eastern Europe. At the time, human rights activists wanted to address the human rights violations of past regimes without hindering the process of political transition. They labelled their movements ‘transitional justice,’ as a response to the type of transition countries were witnessing into more democratic forms of governance. Since then, the term grew to incorporate intersectional and interdisciplinary elements as activists and policymakers recognized that a holistic form of transitional justice was impossible, especially without acknowledging the experiences of women, minorities and oppressed groups (O’Rouke, 2013, 119). Nonetheless, these elements of ‘transitional justice’ always has a set of constant variables: to recognize the dignity of individuals; to address past human rights violations; and to prevent them from happening again in the future. They are best exemplified in UN Resolutions recently adopted to incorporate a gendered lens into peacebuilding processes (O’Rouke, 2013, 119). Ensuring that women and marginalized groups play an effective role in the pursuit of a just society is emblematic of a country’s honest effort to transition out of a traumatic past.
Transitional justice mechanisms understand that not every violation can be treated as the same when seeking justice, therefore solutions must be separated into groups in order to understand the best way to approach complex violations (Adayaalam, 2018). Communities ravaged by mass atrocities, such as civil war or genocide, may seek criminal prosecution but are also in need of other foundational resources to address past trauma. The four approaches to transitional justice are as follows:
- Criminal prosecutions: This approach calls for a sincere approach to prosecuting individuals at all levels of power who were responsible for carrying out atrocious acts against civilians during war periods. It also gives space for victim testimonies to be heard and recorded against criminals who may have otherwise been pardoned by state judicial institutions.
- Truth-seeking: These are non-judicial approaches that conduct inquiries to determine facts, root causes, and consequences of past human rights violations. They prioritize the findings of victim testimonies and truth commissions to not only seek justice for past violations, but to also comprehend the sets of economic, social, and cultural violations that impact different sectors of the population.
- Reparations: They seek to understand the legal and fiduciary obligation of state, individual, or group to repair the consequences of violations that the respective parties may have committed or have failed to prevent. Reparations also let victims of past sufferings know that the state is willing to address the root causes of conflict by allowing them to participate in the crafting and implementation of reparation policy (Turner, 2013, 196). Collective reparations also give space for communities to heal from communal violence and/or decades of discrimination and abuse.
- Reformation: These exist to acknowledge the legal obligation of the state to reform its institutions and laws so that they can restore the trust of their citizens. The vital elements of democratic governance are re-examined in order to prove that the state is committed to addressing the root causes of violence.
These four mechanisms are derived from the four pillars of the ‘Dealing with the past’ framework used by the United Nations to craft more holistic approaches to justice in post-war conflict (Adayaalam, 2018). They include: Right to Justice, Right to Know, Right to Reparation, and Guarantees of Non-Recurrence. Each pillar prioritizes a victim-centered approach, whereby victim experience. testimony, and participation is prioritized at every step in the transitional-justice seeking process (McEvoy & McConnachie, 2013). Since each pillar provides critical steps towards mechanisms of reconciliation, no one stage can be completed in isolation as it produces incomplete and unrealistic solutions. For example, it is near impossible for the governing state produce enough resources to prosecute every individual responsible for mass genocide without the help of truth-seeking commissions, advice from organizations that reach out to victims, and a promise of reformation in the future. This may be due to common fears of retaliation if people were to speak out against their perpetrators, or a general lack of trust in the very institutions that aim to provide justice to victims. Scholars argue that the four pillars of transitional justice should not follow a sequential approach (states should not look at this framework as a ‘checklist’) but should rather work in conjunction with one another.
Case Study: Understanding Transitional Justice in Sri Lanka
As of December 31st 2018, the Internal Displacement Monitoring Centre (IDMC) set the number of Internally Displaced Persons (IDPs) within the borders of Sri Lanka to 42,000 people. These numbers follow the end of a 26-yearlong civil war that resulted in approximately 400,000 internal displacements, with an overwhelming amount of displaced peoples being Tamil-speaking Hindu and Muslim minorities. Armed conflict ended in 2009 with an estimated total of 40 000 civilian deaths among thousands of unaccounted personnel and opposition fighters. The war was waged between the Sri Lankan government forces and LTTE (Liberation Tigers of Tamil Eelam), a guerilla freedom fighters organization aimed at establishing a ‘Tamil Eelam,’ roughly translated as ‘Tamil homeland’. These numbers are staggering, as it is a quantitative image of the deep and long-lasting trauma that a decade-long civil war would leave on victims. In 2015, the United Nations Human Rights Council (UNHRC) adopted Resolution 30/1 called “Promoting reconciliation, accountability and human rights in Sri Lanka.” This resolution followed increasing international pressure highlighting delays on behalf of the Sri Lankan government in implementing long-promised transitional justice mechanisms following the end of civil war (Nain, 2018). Main provisions included: review and repeal of the Prevention of Terrorism Act (which allowed for the arbitrary jailing of civilians without an arrest warrant); the establishment of a Truth, Justice and Reconciliation Commission; and finally the creation of an Office for Missing Persons and an Office for Reparations. Each element included some aspect of the four pillars of transitional justice, and Resolution 30/1 called on Sri Lanka to completely fulfill these requirements in order to make genuine strides toward achieving justice for victims.
In the ten years following the end of armed conflict, the international community and survivors of the civil war have only seen half-hearted attempts on behalf of the Sri Lankan government to meet these standards. For instance, while ratifying parts of the Convention on Enforced Disappearances at the UN General Assembly, Sri Lankan representatives refused to accept the individual complaint procedure, a mechanism that would allow individual reporting of enforced disappearances to be brought up with the international community’s judiciary systems (Vimalarajah, 2018). The Sri Lankan government has set up an Office for Missing Persons in September 2017, but still has not provided answers to an overwhelming majority of IDPs and missing persons in the North-Eastern provinces. These misguided attempts at surface-level transitional justice measures has led to opportunities to increase securitisation and militarisation among minorities, for the fear of starting another civil war triumphs that of providing justice to victims who suffered during the previous one (Vimalarajah, 2018). The government’s delayed and often misinformed responses to recent attacks on churches and Sri Lankan citizens is unfortunately emblematic of how oftentimes, calls for transitional and evolutionary justice within nation-states go unanswered to the detriment of those who desperately need it.
Adayaalam Center for Policy Research. “Understanding ‘Dealing with the Past’ and ‘Transitional Justice’”, accessed at: http://adayaalam.org/wp-content/uploads/2018/01/Understanding-Dealing-with-the-Past-and-Transitional-Justice.pdf
International Centre for Transitional Justice Website. “About Transitional Justice”, accessed at:
McEvoy, Kieran & McConnachie, Kirsten. (2013). “Victims and Transitional Justice: Voice, Agency and Blame”, Social and Legal Studies, accessed at:
Nain, Yashasvi. (2018). “Transitional Justice in Sri Lanka: From Denial to Delay”. The Diplomat, accessed at: https://thediplomat.com/2018/03/transitional-justice-in-sri-lanka-from-denial-to-delay/
O’Rouke, Catherine. (2013). Gender Politics in Transitional Justice. Routledge (London). 296p. https://doi-org.proxy.bib.uottawa.ca/10.4324/9780203431252
Turner, Catherine. (2013). Deconstructing Transitional Justice. Law and Critique, 24(2), 193-209. https://journals-scholarsportal info.proxy.bib.uottawa.ca/details/09578536/v24i0002/193_dtj.xml
Piratheeca Vimalarajah, “Post-War Ground Realities of Dissolving Territories and Protracted Displacement of Eelam Tamils in Sri Lanka: An Analysis of the Militarization and Land Confiscation under the Lens of Persecution and Forcible Displacement as Crimes Against Humanity” (2018) 2 PKI Global Just J 28.