US Policy on Transitional Justice

Publication Type: 
Other Writing
Publication Date: 
June 29, 2016

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 commissionstrials,reparationsvetting, 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 andbegan 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.

Read the full post at Just Security