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Alison Davidian and Emily Kenney

This chapter explores the role of the UN in the field of transitional justice. It provides an overview of normative standards and actors working in the area, and focuses on three of the UN’s added values, namely: (a) the breadth of its work in post-conflict countries which allows it to reinforce synergies between transitional justice and development programming; (b) its ability to leverage relationships with member states and other intergovernmental bodies, to provide direct support to transitional justice processes; and (c) its convening power which provides a platform for victims and civil society groups to engage directly with governments. The chapter concludes that, while the UN has made positive advances in this field, its work is plagued by the same concerns and limitations that impact implementation of human rights instruments globally. UN entities, special rapporteurs, commissions of inquiry and treaty bodies can and do make recommendations to member states to respect international standards and norms, but it is up to states to act on them. Given the limitations of sovereignty, one of the UN’s greatest strengths in this area is its ability to engage diplomatically, advocate for the highest standards and provide a platform for civil society and victims associations to engage with the state. United Nations; norms; standards; actors; engagement

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Cynthia M. Horne

Vetting and lustration are two types of transitional justice that fall under the category of personnel reform mechanisms. Most basically, the measures involve the screening of individuals in public institutions, semi-public positions and/or loosely defined positions of public trust in order to verify that personnel have the integrity and capacity to fulfil their positions in a way that supports the goals of the new regime. Individuals found lacking in certain integrity or capability criteria are compulsorily removed from their positions, prevented from taking new positions, encouraged to voluntarily resign from positions or face the public disclosure of their past, or alternatively, are required to confess past involvement as a form of accountability. Vetting and lustration measures are alleged to establish a break with the past and provide opportunities for state and societal rebuilding and reconciliation. Vetting and lustration have been used in a variety of post-conflict and post-authoritarian contexts, including targeted security sector reforms in Liberia and Bosnia, broader public employee assessment programs in Greece and El Salvador, and personnel reforms coupled with truth-telling in the Czech Republic and Poland. As transitional justice measures, they are malleable to the institutional setting and capacity of states, and can be enacted in conjunction with other measures, like trials, truth commissions and amnesties. In terms of goals, both vetting and lustration are designed to directly improve the trustworthiness and functionality of the new regime’s institutions and indirectly support the processes of democratization, state (re)building and societal reconciliation. Vetting; lustration; personnel reform; institutional change

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Padraig McAuliffe

Although it is commonly assumed that transitional justice is inherently restorative of the rule of law, the return of the rule of law it apparently heralds is a much wider and more contingent phenomenon. In transitional justice scholarship and policy documents soliciting support for projects in the field, the rule of law is presented as a broad narrative of progress from the dominance of force to the judicialization of politics, primarily viewed through the lens of a single defining idea, namely an almost exclusive focus on legal and non-legal responses to human rights deprivations broadly understood. This complements, but falls far short of, the conception of the rule of law in large reconstruction missions where the rule of law is conceived of in a more programmatic way as an admixture of institutions, culture and norms. Given what we know about the enduring nature of weak rule of law in post-conflict states, it should not be assumed that transitional justice automatically contributes anything beyond the symbolic to institutional reconstruction or the process of fostering a cultural commitment on the part of rulers or the ruled. Justice is but one virtue of the rule of law – policy-makers and practitioners need to separate justice conceptually from the rule of law if either is to be pursued with clarity. Rule of law; democratization; reconstruction

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Lavinia Stan

Since 1989 Central and Eastern European countries have implemented a wide range of programs designed to help those societies reckon with the numerous human rights abuses perpetrated by the communist regimes after the end of the Second World War. Some of these programs (lustration and access to secret files) had never been enacted in other regions of the world. This chapter presents an overview of transitional justice mechanisms launched in the region by state and non-state actors, as well as two of the most important theoretical insights gained from studying the coming-to-terms experience of Central and Eastern Europe. These theoretical insights relate to the factors that explain why some countries engage in transitional justice and others do not, as well as the impact of reckoning programs on post-communist democratization. Eastern Europe; court trials; secret files; lustration; history commissions

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Cheryl Lawther

In recent years truth commissions have become the ‘go to’ response in the aftermath of violent conflict and human rights abuses. They are often presented as a way to manage two problems that commonly occur in peace processes – finding the balance between the need to know what happened in the past and moving forward, and encouraging greater recognition of the complexity of ‘truth’ post conflict. This chapter questions the extent to which truth commissions have tended to shape and reify the identities of victims and perpetrators and whether these binary oppositions obscure the reality of structural culpability. It does so by critically interrogating the relationship between truth commissions and victims, truth commissions and perpetrators and truth commissions and structural actors in turn. The chapter concludes by arguing that greater recognition of the complexity of identity and involvement in conflict is required to provide a more honest reflection of the past and a more sustainable link between truth-telling and peacebuilding. Truth commissions; victims; perpetrators; institutions

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Laurel E. Fletcher and Harvey M. Weinstein

As transitional justice has evolved over the last two decades, the field has coalesced around the goals of truth, justice and reconciliation, with victims at its center. Even as a sense of a moral – and increasingly – a legal obligation to victims has driven the international transitional justice agenda, scholars have questioned the assumptions about victims that drive policy and practice, thereby opening up new areas of inquiry. A burgeoning transitional justice literature has raised questions of national and international responsibility to victims, the role of cultures in processes of social reconstruction, the value of transitional justice to victim empowerment, the social construction of victim identity and the differential contribution of retributive and distributive justice to victims and societal change. This chapter examines these assumptions, from where they arose, and how they have been expressed in discourse and praxis. It also takes into account the work of academics as well as the contributions of victims and their advocates to examine the evolution of the field. By identifying some of the tensions generated by the diverse goals and understandings of victimhood, this chapter sheds new light on the challenges to and concerns raised by a victim-centered transitional justice. Victimhood; identity; reimagining

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Aaron Fichtelberg

Hybrid tribunals combine elements of domestic and international justice in an effort to develop a criminal justice response to mass atrocity that has the potential for greater impact than conventional international or domestic courts. This chapter describes some of the basic features of these tribunals and situates them in relation to other institutions and alternative programs of transitional justice. After a discussion of each tribunal’s unique features and some of their major cases, the chapter turns to the central goals of transitional justice, such as ensuring stability, establishing the rule of law and allowing a society to properly process the collective trauma that they have undergone as well as the unique role that some of these tribunals have played in this process. The chapter then examines the extent to which these tribunals provide a promising alternative to other institutions of transitional justice, along with some concerns about the reliance on criminal justice as a tool for transitional justice. Hybrid tribunals; impunity; stability; rule of law; redress

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Brendan Ciarán Browne

The enduring political stalemate in Israel–Palestine is indicative of the myriad failed peacebuilding attempts in the region and has resulted in a growing sense of disillusionment for any hope of enduring resolution. Against the backdrop of a seemingly endless cycle of inter-group conflict, the entrenchment of the Israeli Occupation and further marginalization of the aspirations of Palestinian refugees, a rapidly expanding grassroots activist movement has blossomed in an effort to realize some form of ‘justice’ for those most beleaguered. This chapter analyses the ad hoc transitional justice mechanisms that have been considered in recent years in an effort to bring about some form of redress. Beginning with an overview of the contested historical narratives, an insight into the failed political processes and turning next to examine the divergent top-down and bottom-up approaches that have sought an end to the impasse, the chapter emphasizes the highly challenging environment in which grassroots movements dedicated to memory-recall, the realization of justice, and some form of resolution to the conflict, attempt to operate against. The ongoing attacks on grassroots movements by an Israeli government seemingly intent on airbrushing from history the Palestinian narrative of the events of 1948, one that is divergent to their own, is discussed with a view to highlighting the limits of transitional justice in generating a conciliatory climate in which peace may be forged. Palestine; bottom-up transitional justice; top-down transitional justice

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Luke Moffett

Reparations are often considered victim-centred transitional justice measures. While they have their basis in private law notions of corrective justice and the human rights principle of remedy, politics and economic resources often shape reparations in times of transition. Reparations in transitional societies often take time and require revisiting as the society becomes conscious of previously hidden or marginalized victims. Added to this is the challenge of delimiting those who are eligible, and determining when the transition ends. This raises questions of whether reparations are appropriate for historical violations caused by colonial governments or slavery. The chapter examines individual and collective reparations, apportionment amongst family members, reparation processes and mechanisms, as well as evidential and financial concerns. Although public resources may be limited in providing full compensatory awards to all victims, small sums or pensions along with public acknowledgement of victims’ suffering, wrongfulness of the perpetrators and institutions’ acts, along with guarantees of non-repetition can be ‘good enough’. This chapter argues that, despite the political wrangling over reparations during transition, the right to reparations in international law reflects the necessity of states to deliver reparations to victims of serious violations. Reparations; remedy; transformation; eligibility; responsibility

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Dustin N. Sharp

In recent years, there has been an increasing interest in the possibilities of using ‘local’, ‘traditional’ or ‘non-Western’ modalities of dispute resolution, reconciliation, truth-telling and retributive justice to address legacies of large-scale atrocity and abuse. While such initiatives have at times been innovative, they have also generated many controversies. For example, local or traditional justice and reconciliation practices may clash with international human rights standards; they may be ill adapted for the context of mass atrocities that spill over porous borders of culture and the nation state; they may be imposed on local communities much like any other post-conflict justice initiative; and they are often filtered through the prism of local politics and historic power disparities, creating the potential to be more repressive than emancipatory. This chapter will explore the general promises and pitfalls of such tradition-based initiatives, using experiences from Rwanda, Uganda and East Timor as examples. I argue that we must be careful not to romanticize local justice; yet at the same time, transitional justice scholars, practitioners and policy-makers ignore local preferences and conceptions of justice at their peril. While greater use of local modalities of justice will require a fairly robust ‘margin of appreciation’ and acceptance of a degree of legal pluralism that may make some international human rights lawyers uncomfortable, striking a better balance between global and local modalities of justice is ultimately required if we are to make transitional justice into more of a true global project. Local justice; traditional justice; global–local balance