About transitional justice and human rights

In societies that try to rebuild and move on from a violent history marked by serious human rights violations – whether committed in contexts of repression, armed conflict or otherwise – important questions arise around how to acknowledge violations, satisfy demands for justice, prevent recurrence, restore the social fabric of communities, and build sustainable peace. Transitional justice is the discipline that seeks to unpack what it takes for societies to deal with such challenging legacies and develops various instruments to do so.

For the United Nations, transitional justice comprises “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past violations and abuses to ensure accountability, serve justice, and achieve reconciliation” (S/2004/616). It aims at providing recognition to victims of past abuse as rights holders, enhancing trust between individuals in society and trust of individuals in State institutions, and reinforcing respect for human rights and promoting the rule of law (A/HRC/21/46). Transitional justice thus seeks to contribute to reconciliation and the prevention of new violations.

Transitional justice is rooted in international human rights law. States have an obligation to provide victims of human rights violations with an effective remedy; satisfying their rights to truth, justice, and reparation. For the obligation to be met, and for transitional justice to be able to effectively contribute to sustainable peace and reconciliation, comprehensive approaches are required. Such approaches seek to make progress in all dimensions of transitional justice in a complementary manner.

Transitional justice processes include truth-seeking, prosecution initiatives, various types of reparation, and a wide array of measures to prevent the recurrence of new violations, including constitutional, legal, and institutional reform, the strengthening of civil society, memorialization efforts, cultural initiatives, the preservation of archives and the reform of history education – as required and appropriate in the specific context.

Transitional justice processes should be: 

• Context-specific: based on each country context’s specificities, political, institutional, and legal settings, history, culture, and local priorities, including victims’ expectations and demands regarding justice, reconciliation, and post-violence reconstruction.
• Nationally owned: national and local authorities, as well as victims’ communities and society at large, have ownership of the process, participate in its design and implementation, recognize it, and relate to it in understanding the legacy of the past and building a shared vision for the future.
• Inclusive: including all stakeholders, be they victims, bystanders, or perpetrators, regardless of their political, social, religious or ethnic background, as well as broader communities and society, with an emphasis on involving those who may have been traditionally or frequently left out or marginalized (ethnic/religious minorities, stateless people, women, youth, children, etc.).
• Victim-centred: recognizing the centrality of victims and their special status in the design and implementation of transitional justice processes; their dignity, views, priorities, and concerns should be fully respected.
• Gender-sensitive: including women at all stages and levels of decision-making in the transitional justice process and holistically addressing the full range of human rights violations to transform gender inequality, including by adopting a specific focus on sexual and gender-based violations and their root causes.
• Participative and empowering: ensuring meaningful participation and consultation with victims and affected communities in designing and implementing transitional justice mechanisms, thereby contributing to a shift in victims’ and broader society’s perceptions and understanding of their status and roles as beneficiaries of the process and as powerful agents of change in pursuit of transformation, peace, democracy and reconciliation. 
• Transformative for all of society: understood not just as a backward-looking exercise but as a forward-looking opportunity for more significant societal transformation through addressing both the needs of victims and the root causes of violations, including gross inequalities, unfair power structures, entrenched discrimination and exclusion, institutional deficiencies, structural impunity and other human rights violations which underlie or drive so many threats to peace and security.

If transitional justice processes meet these criteria, it allows them to make a critical contribution to the deep change of attitude that sustainable transformations demand. In all of this, it is essential to ensure the broadest possible participation of civil society organizations in decision-making.

Transitional justice as a peacebuilding tool

Lasting peace is interlinked with justice, development, and respect for human rights. Transitional justice processes have repeatedly demonstrated that they can help to address societal grievances and divisions. To this end, transitional justice processes must be context-specific, nationally owned, and focused on the needs of victims. Then, they can best connect, empower and transform societies and thereby contribute to lasting peace. 
The 2016 twin resolutions on sustaining peace, General Assembly resolution 70/262 and Security Council resolution 2282, similarly recognize national ownership and inclusivity as fundamental for peacebuilding efforts to succeed.

Transitional justice, accountability, and prevention  

Justice and accountability processes help to break cycles of violence and atrocities, restore the rule of law and trust in institutions, and build strong societies that can diminish the risk of serious human rights violations. Security Council resolutions have made a point to “stress […] the importance of accountability in preventing future conflicts, avoiding the recurrence of serious violations of international law and enabling sustainable peace, justice, truth and reconciliation”. Justice and accountability are crucial to address and redress risk factors for the commission of atrocity crimes (see the UN’s Framework of Analysis for Atrocity Crimes).

Each of the components of transitional justice can play a role in the prevention of atrocities and other types of serious human rights violations (A/HRC/37/65). Criminal accountability sends a clear sign that no one is above the law: this is crucial for social integration and cohesion. It also disrupts/disables criminal networks and holds the potential of deterring further violations and crimes.

Truth-seeking provides victims and affected communities with a public platform to express their views and enables different communities to hear each other’s perceptions, thereby providing an objective and factual basis for developing a shared understanding of the past. This provides the basis for recommendations for prevention. Reparations contribute to prevention through the recognition of victims as rights-bearing individuals and their potential as a catalytic tool for the transformation of their conditions. 

Guarantees of non-recurrence are inherently forward-looking and preventive. These are specific measures that address the root and immediate causes of violations with a view to avoiding their recurrence. Beyond institutional reform – which includes constitutional reform, as well as justice and security sector reform, including vetting – such measures can consist of changes to history education, trauma counselling, archiving, and memorialization initiatives.