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US Policy on Transitional Justice

The US State Department and the Agency for International Development recently published a series of policy papers on the US approach to transitional justice. The United States has historically played an important role in advancing transitional justice programs abroad. Indeed, the instantiation of accountability and other forms of transitional justice as core diplomatic tools to be deployed in the response to conflict and mass violence marks an important evolution in United States foreign policy priorities since the 1990s.

Transitional justice is now a distinct foreign policy imperative and has become the subject of international diplomacy across multiple administrations notwithstanding countervailing inter-agency equities, differing transitional justice preferences (particularly between regional and functional bureaus within the State Department), and sheer bureaucratic inertia. So, the fact that a coherent set of policy statements has emerged is significant. The suite of papers offers an overview of the field of transitional justice as well as deeper discussions of key transitional justice mechanisms: truth commissions, trials, reparations, vetting, and amnesty laws. This initiative confirms that the idea of justice — broadly defined — can inform and inspire governmental action while also advancing other more hard-edged foreign policy priorities.

As an intellectual field, the discipline of transitional justice is premised on the idea that increasing accountability and decreasing impunity for prior human rights violations and abuses — all while honoring and rehabilitating victims — is essential to building more democratic societies in the wake of conflict and systemic repression. Transitional justice emerged as a discrete field of theoretical study and practice in the 1980s as once embattled and repressive regimes sought to transition into more peaceful, democratic, and just societies. Although the end of the Cold War heralded a wave of transitions around the globe, the epicenter of this movement was in Latin America in the 1980s. At that time, societies in Central and South American began to openly engage with a legacy of conflict, ethnic repression, and authoritarianism by instituting a range of transitional mechanisms, most notably amnesties and truth commissions. In Eastern Europe — where repression was less overtly violent and more bureaucratized in nature — societies experimented with lustrations (the vetting of government actors and others seeking to hold positions of trust in the new era) and other transparency initiatives, such as opening the files of the security services. In the 1990s, the international community revived the Nuremberg legacy and began investing heavily in criminal prosecutions before international and internationalized criminal tribunals, which made important contributions in providing justice and developing international criminal law and procedure, but at great cost.

The field of transitional justice has evolved considerably since its inception. For one, legalism plays an increasingly important role. This reflects the fact that many societies have undertaken binding legal obligations by virtue of their ratification of a range of human rights and international criminal law treaties that contain express and implicit duties to prosecute breaches, provide due process and judicial protection, reject blanket amnesties, respect and ensure the right to truth, and repair victims. As such, confronting a legacy of past abuse is no longer something that can be fully negotiated away.

Second, even in highly repressive states, courageous and sophisticated civil society organizations now form part of an international epistemic community devoted to fostering human rights and accountability in the wake of abuses. These groups can make credible demands on transitioning states to translate ideals into action. They can also serve as conduits to bring new ideas and external expertise into domestic processes.

Third, there is now increased international attention and commitment to atrocities prevention and post-conflict peacebuilding more generally.  More and more, transitional justice strategies are being coordinated with these other efforts to ensure that they are mutually reinforcing, interdisciplinary, and self-consciously consultative so as to best balance moral demands of the victims with the practical limitations that characterize virtually all transitional contexts.

Fourth is the increased role for the international community — donor nations, the United Nations, and civil society organizations — in assisting transitional states. Although it is the state and its polity that must ultimately decide on a transitional justice program, the international donor community has a role to play in terms of providing financial, diplomatic, technical, and other forms of support. In this regard, the international community is increasingly coordinated with it comes to programming and funding around transitional justice issues.

Fifth, the transitional justice field originally developed around a menu of archetypal mechanisms that seemed to require states to choose between competing options: either amnesty or accountability; truth or peace. As a result, some post-conflict justice initiatives were poorly integrated and did not necessarily address the specific demands of local culture and context. Today, we understand that the various interventions can be layered, coordinated, and sequenced in ways that address resource and political constraints as well as the prevailing balance of attitudes between the desire to “forgive and forget” on the one hand and the demand for “no peace without justice” on the other.

Sixth, at the dawn of the field, societies were left to improvise, with little guidance, coordination, or outside support. Today, national actors can benefit from the lessons learned from other societies that have lived through similar experiences. There is now a growing recognition that the challenges faced by transitioning societies are not necessarily unique or without precedent, and history offers various models that can provide inspiration for local adaptation.

Finally, and notwithstanding these commonalities, because every post-conflict society has its own unique manifestations of violence, history of grievances, cultural traditions, and political realities, bespoke solutions are inevitable. In particular, we now recognize that different approaches might be warranted depending on whether the society is emerging from an armed conflict (whether international or domestic), a history of authoritarianism or governmental repression, violence on the part of non-state actors or episodes of sectarian violence.

In a subsequent post, I will detail ways in which the United States and other members of the international community have supported, and can continue to support, transitional justice efforts around the globe.

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About the Author

is a fellow at the Center for Advanced Study in the Behavioral Sciences (CASBS) at Stanford University. She was formerly the Leah Kaplan Visiting Professor of Human Rights at Stanford Law School, a Professor of Law at Santa Clara University School of Law, and Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).