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Transitional Justice: A Quick Overview

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Introduction

Transitional justice is one kind of method that deals with systematic or widespread human rights breaches that compensate victims and improves prospects for the reform of political systems, and other factors that may have contributed to the injustice[i].

A transitional justice approach recognizes two goals while dealing with an inheritance of methodical or institutional abuse[ii]. The first is to provide victims with some measure of justice[iii]. The second goal is to strengthen peace, democracy, and reconciliation prospects. Transitional justice measures frequently mix components of criminal, restorative, and social justice to achieve these two goals[iv].

The transitional justice system is not a new concept. Much more, it is a justice suited to the often-unusual circumstances of society that is transformed away from an era where abuse of human rights may be normal. These alterations may occur abruptly in some circumstances, with evident and significant repercussions. In certain cases, these may take a generation to occur[v].

The aim of this paper is to discuss the primary objective of transitional justice, including the obstacles to overcome. It is hypothesized that transitional justice is the process by which nations are recovering through periods of conflict and authoritarianism resolve humongous and systematic human rights breaches that are so numerous and grave that the traditional legal system might be unable to respond adequately.

Background

The concept came first between the late 1980 and the beginning of 1990, including in the context of the political transitions in Latin America and Eastern Europe, during which justice claims advanced. The question of how to effectively address the systemic abuses of former governments, but still strong and do not derail the political transformations under-way, was at that time raised by human rights activists and others.

As these transitions are commonly known as “transitions to democracy,” this new multidisciplinary area has been referred to as “transitional justice,” or “justice in transitional times.” The recognition emerged that dealing with systematic or huge violence requires a unique and forward-looking approach and the transitional justice actions are aimed not only at rebutting violence but also at helping prevent similar incidents from happening in the long term. To promote peace, democracy, and reconciliation, the long-term aims of transitional justice measures must be protected.

What is the appearance of transitional justice?

As a result of the number of violations and the fragility of society, not all violations will be addressed as usual. However, four types of “approaches” have traditionally been highlighted[vi]:

  1. a) Criminal prosecution is at least the most culpable as the severe
  2. b) ‘Truth-seeking’ in various studies has focused on non-judicial human rights violations. These can be diverse, but often not only look at events, but also their causes and effects.
  3. c) Human rights violations reparations in several forms: Individual, group, substance, and metaphoric.
  4. d) Legislative and institutional reforms as well as law enforcement, legal, armed forces, and armed services.

These tactics ought not to be considered as alternatives. The truth commissions, for instance are not a replacement for law enforcement. In delivering considerably more general recognition and curbing the atmosphere of negative behaviour, they strive to do something distinct from prosecutions. Similarly, the reform of constitutional systems, laws, and institutions are not the alternatives, but they try to restore trust and minimize the repetition of infractions promptly.

Transitional Justice in the Modern world

Transitional justice has become an extensive as well as dynamic field nowadays. As it grew up, the social justice movements, conflict resolution, peace-building, together with the historical knowledge, have found a common ground.[vii] As transitional contexts have evolved geographically from Latin America and Eastern Europe to Africa and Asia, transitional justice specialists have crossed paths with native, sometimes kept referring to as “traditional” justice measures, which can be a beneficial substitute to transitional justice[viii]. A few other communities, including in Sierra Leone and Uganda, may wish to use traditional rituals to bring peace among both warring parties or to reintegrate ex-combatants . This type of transitional justice seeks to ensure that a holistic plan is adopted, which may involve rituals, but also criminal justice and those more accountable for significant crimes, alongside various additional prosecution measures with reparation[ix] .

Social justice movements throughout the world, especially Australia and the United States via Guatemala as well as South Africa, have developed transitional justice methods to seek retribution for the legacy of widespread injustice[x] . All of these events regularly focus on long-term exemptions generated by economic and educational, race-based, or sexism, instead of physical abuses such as murder and forced extinctions, which were central to many initial transitional justice efforts. As the profession has grown and diversified over the last two decades, it has also established a strong foundation internationally[xi].

Challenges

Since there are very often ethical, lawful, as well as ideological moral dilemmas in transitional contexts, addressing structural rather than massive human rights abuses can be one of the greatest politically empathetic[xii] . The politics of power balance is often sensitive and new leader authorities may not be prepared to keep pursuing extensive initiatives for transitional justice, or may not be willing to get it without jeopardizing their own consistency[xiii]. The importance of criminal justice in the wake of mass violations often lies, hence the need to bring the perpetrators accountable both for widespread misconduct and in the scene of hearings in courtrooms[xiv]. In Argentina, in the early 1980s, the trials of the military junta officials captured the attention of the public as an exemplar[xv]. However, as an independent approach to seek justice, criminal justice can face issues. Numerous victims and perpetrators may exist, especially in circumstances involving extensive abuse, such as genocide[xvi].

Furthermore, the judicial system may indeed be functional because most police officers, prosecutors, also judges are deemed incompetent as well as corrupted and inadequate, to act for the national benefit and safeguard individuals’ rights to justice[xvii]. Besides, the issue of whether the procedure of judiciary has the authority to identify a systemic along with widespread breach of human rights, there also remains the question that whether they are sufficient in and of themselves. Transitional justice, in fact, is based on the belief that they aren’t. After two decades of experience, it appears that transitional justice needs to be holistic in order to be effective[xviii]. It should be comprised of a number of activities that work together to complement and support one another.

Recommendations

There is eventually hardly any particular wording to grapple with a past characterized by vast and systemic injustice. Indeed, every society needs to choose its very own direction. To date, the process might have instructed us all that the decisions of society are more effective if they are based on a serious review of previous regional and global observations. One such investigation decreases the possibility that transitional cultures can seldom make preventable mistakes to revisit. Another important factor is to ensure active consultations and involvement by victims’ groups and the public. The purpose of developing and implementing significant along with beneficial transitional justice regulations is sufficiently reduced without such consultation and participation.

Aside from that, if a gender main-streaming strategy is taken, the potential benefit of transitional justice projects will most likely benefit a larger number of people. Transitional justice approaches that neglect the particular and complicated traumas that women and racial patterns of abuse have endured in their access to justice, which can harm both men and women, are missing crucial opportunities to address the gendered legacy of authoritarians and conflict.

The continuing academic and practical dialogue among experts in transitional justice and another relevant additional which is closely related fields of work, as an illustration, dispute settlement, liberalization, innovation, peace-building, and anti-corruption, also becomes important. The above methodology is vital for developing complete and accurate guidelines.

As transitional justice is a relatively new area, the scientific effect of restorative justice initiatives needs to be actively assessed. The evaluation will give future policies the best opportunity to achieve the immediate goals of remedying the victims and the longer-term goals of peace, modernization, and unification.

Stakeholders should be made aware of the importance of transitional justice in the relevance to financial, social, and cultural rights violations, as well as the potential to address these violations. However, it should not overestimate its potential for permanent changes in society. Regardless of the fact that the transitional procedures emphasize primary causes and abuses of financial, social, and cultural rights, it will make a contribution to societal transformation in a fairly significant way.

The stakeholders of transitional justice need an absolute understanding of economic, social, and cultural rights, of their deriving national obligations as well as of the international and regional mechanisms for protecting them. In enhancing collaboration between the two electoral districts, scholars in financial, social, and cultural rights, including those who are working for regional organizations, need to acquire further knowledge about transitional justice.

Writer: Sahariar Islam, LL.B (Hon’s), Southeast University

Endnote:

[i] Adopted from ICTJ

https://www.ictj.org/about/transitional-justice ; accesed on 16 August 2021.

[ii] Ibid

[iii] Ibid

[iv] Ibid

[v] Ibid

[vi] Adopted from United Nation Human Rights. https://www.ohchr.org/Documents/Publications/hr-pub-13-05.pdf  accesed on, 8 August,2021.

[vii] Paul Gready, Simon Robins, ‘Transitional Justice and Theories of Change: Towards evaluation as understanding’ [(2020)] Volume 14 Pages (280–299).

[viii] Ibid

[ix] Eisikovits, Nir, “Transitional Justice”, The Stanford Encyclopedia of Philosophy (Fall 2017 Edition), Edward N. Zalta (ed.),

https://plato.stanford.edu/archives/fall2017/entries/justice-transitional/.

[x] Ibid

[xi] Louis Bickford, “Transitional justice “[(2004)] Volume 4 page 1045-1047.

[xii] Adopted from UNITED STATES INSTITUTE OF PEACE PRESS WASHINGTON, D.C. https://www.corteidh.or.cr/tablas/32868.pdf   Accessed on  8 August 2021.

[xiii] Ibid

[xiv] Ibid

[xv] Ibid

[xvi] Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge University Press,2004).

[xvii] Ibid

[xviii] Ibid

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