Transitional Justice

May 22, 2017

April 7 marked 23 years since the start of the Rwandan genocide, in which an estimated 800,000 to one million overwhelmingly ethnic Tutsi Rwandans were killed by predominantly ethnic Hutu militias in 100 days.  

Following the genocide, a variety of legal processes were established to deal with the legacy of the genocide, including the United Nations established International Criminal Tribunal for Rwanda (ICTR) as well as a gacaca process oriented around truth and reconciliation.

The gacaca process has two stages, the first of which is information gathering and the second of which is a trial which is public and participatory that takes place in the accused’s home village. 

Rwanda is one of dozens of countries in recent decades that have engaged in what is known as transitional justice. “The term “transitional justice” is generally taken to refer to formal attempts by post-repressive or post-conflict societies to address past wrongdoing in their efforts to democratize.” 

As the Rwandan use of gacaca processes illustrates, “societies in transition have enacted a range of measures to confront these legacies of violence, such as amnesty, criminal trials, truth commissions which “are officially established committees directed to investigate and document patterns of human rights abuses during a specified period.  Commissions produce a report that summarizes the findings of their investigation, but do not punish perpetrators” and reparations.”

“At the heart of debates about how societies in transition should deal with wrongdoing is... a question about the general standards that any response to wrongdoing must meet in order to qualify as just.  Modern democracies generally hold that criminal punishment is the “first-best” moral response to wrongdoing, especially in the case of egregious wrongdoing such as rape and torture.  Trials establish guilt and determine punishment, giving perpetrators “what they deserve.” Justice is achieved when wrongdoers are punished.  This is the basic idea of retributive justice. Yet, in transitional contexts both pragmatic and moral obstacles preclude the straightforward application of trial, conviction, and criminal punishment to many, indeed most, perpetrators of wrongdoing.”  This is why alternative legal processes are adopted.

Are legal responses to wrongdoing that do not entail punishment just?  

In my view, they can be.  As I argue in my new book, The Conceptual Foundations of Transitional Justice, transitional justice is its own distinctive type of justice. Transitional justice is concerned with societal transformation, that is, transforming the relationships among citizens and between citizens and officials so that genocide or other forms of wrongdoing do not happen again.  Responses to wrongdoing are just insofar as they contribute to this transformation by, for example, promoting the rule of law or cultivating conditions under which minimum trust can be reasonable.