Key Findings: Transitional Justice
Read our key findings on transitional justice
Transitional justice refers to the process of designing and implementing a range of mechanisms centred on how to deal with the past conflict, as part of a transition process. Our work has centred on four main dimensions of transitional justice, as outlined below. In each of these areas we attempted to move beyond the peace versus justice debate to understand better how to navigate issues of inclusion.
For an overview, see our transitional justice infographic.
Transitional justice measures are commonly put in place as part of a peace process, but are often developed and institutionalised sometime after the key peace agreement is signed in an implementation period that is seldom linear and can move back into conflict as well as forward. For some, the term transitional justice means ‘a set of tools for accountability’, for some it means any measure to deal with the past post-conflict, and for some it means a mechanism of reconciling demands for accountability with the need to ‘move on’ through a creative approach (Bell, 2017).
Our research shows that it is important to the design and implementation of transitional justice measures to understand the political contestation around ‘the past’, and also the need to deal with ‘the past’ in some way. This is because transitional justice raises a set of important issues which will continue to affect the politics of the present (Bell, 2017; Bell and Pospisil, 2017; Mallinder, 2020).
Our research also shows that transitional justice interacts with different forms of power-sharing; the tensions in the peace versus justice debates which are central to TJ theory and practice and how they interact with consociational forms of governance; the relationship between community versus individual rights in consociational settlements; and how the emphasis on TJ theory and practice on ‘bottom-up, victim led’ processes interact with consociational debate on grassroots versus elite interactions. (Brown and Ní Aoláin, 2016).
There is a tendency in political forms that follow from transitional justice processes to focus and reinforce identity politics. While power-sharing and consociationalism-type arrangements provide stability in transition from violence, they can constrain meaningful deeper political transformation (Brown and Ní Aoláin, 2015).
However, the intersections between transitional justice and consociationalism mean that they could potentially work together in a complementary fashion, providing a ‘top’ and ‘bottom’ engagement that acknowledges but is not subservient to group difference (Brown and Ní Aoláin, 2016).
Amnesties are an important tool in conflict, peace and transition settings. Our data reveals that:
- Hybrid or authoritarian regimes are more likely to grant amnesties than democratic states.
- They are most common in ongoing conflict, with no peace or transition negotiations ongoing.
- Amnesties are less frequent in early pre-negotiation stages of a peace process, becoming more common as the process develops (Mallinder, 2018; Mallinder, 2020).
In the later stages of the peace process, the legal effects of amnesties are likely to become increasingly lenient to their beneficiaries. Following the pre-negotiation phase, temporary amnesties relating to prisoner releases and sentence reductions are more likely (Mallinder, 2020).
When tied to a negotiated peace settlement, amnesties are likely to have a positive impact on the sustainability of peace. It is less clear whether this applies to amnesties more broadly, or only to amnesties that are either carried out in authoritarian settings or that exclude serious violations.
37% of amnesties between 1990 and 2016 were unconditional. State actors are more likely to benefit from unconditional amnesties than non-state armed groups, widening the risk of impunity (Mallinder, 2018; Mallinder, 2020).
Assisting with setting up amnesties in the post-conflict setting should be approached carefully as amnesties enacted at this time can offer widest level of impunity (Mallinder, 2018; Mallinder, 2020).
The design of an amnesty will shape its capacity to contribute to sustainable peace and influence inclusion and exclusion. Amnesties should be evaluated in terms of their:
- Legality (are they passed by law?)
- Legitimacy (were they democratically passed?)
- Feasibility (are all the required mechanisms in place to deliver the amnesty lawfully, effectively and fairly?) (Mallinder, 2018; Mallinder, 2020).
Ensuring these mechanisms should involve detailed technical decisions, such as which categories of persons and crimes are covered, the types of conditions attached and the legal effects (Mallinder, 2018; Mallinder, 2020).
Consitution-making & transitional justice
In many post-conflict or democratic transitions, transitional justice and constitution-making are in one instance shaped by and result in a ‘pacted transition’ based on comprise between the opposing groups at the centre of conflict. Transitions are not linear but are ongoing processes. Both should be understood both as a response to the contestation of the conflict, and as vehicles which are part of the ongoing debate and political bargaining over the nature of the state (Cats-Baril, 2019).
Transitional justice and constitution-making should be better integrated during transitions. The following areas require attention:
- Sharing of information and experiences between transitional justice and constitution-making communities. International donors, member states of key organisations and international organisations should all engage in more cross over opportunities at policy level.
- Ways to co-ordinate political and financial support at the top policy level. Part of this should involve attempts by national and country level donors to create and design mechanisms or institutional bodies which coordinate support for transitional justice and constitution-making.
- Addressing overlaps between the processes, ensuring they reinforce each other rather than undermine. International partners should ensure their efforts in both processes do not become disconnected (Cats-Baril, 2019).
Mechanisms from both TJ and constitution-building processes can complement or undermine one another, there is no right answer as to the order they should be implemented in – this should be resolved in context. For example, truth seeking processes preceding constitution building may help set out injustices and form an agenda for reform. Conversely, constitution building can be used as an impetus to actors involved in past events, providing them a guarantee and encouraging their political buy in to transitional justice processes (Cats-Baril, 2019).
Truth commissions and constitution making bodies often operate simultaneously, and in different ways both seek to generate narratives about the substantive wrongdoings during the country’s past and what future remedies should look like. These narratives must reinforce rather than contradict each other (Cats-Baril, 2019).
Compromise and negotiation between TJ and constitution-building processes are important for maintaining transition momentum. Part of this requires recognition from both processes of their shared political nature and origins in the political settlement which underpins the country’s transition (Cats-Baril, 2019).
Gender & transitional justice
Most pre-negotiation ‘talks about talks’ remain extremely exclusive and inaccessible, reserved for prominent political or military figures who tend to be men, but help to shape how the ‘past’ is dealt with. There is a need for more focus on how women can be present and influential in these early discussions which help shape the trajectory of transitional justice (Jamar and Bell, 2018).
In a majority of the ‘past-focused’ provisions arising from these early pre-negotiation agreements, which secure early commitments addressing accountability, women are still predominantly framed as victims. Among the most substantive commitments in these early stages are issues relating to support for victims and amnesty (Jamar and Bell, 2018).
Out of 992 peace agreement provisions between 1990 and 2016 addressing transitional justice at the framework/implementation stage, only 4% address gender in some form. Most of these address women as victims, however, some move beyond this by encouraging women’s participation in policy design or implementation of core transitional justice mechanisms (Jamar and Bell, 2018).
A majority of the transitional justice mechanisms set out in the provisions of peace agreements are designed as non-judicial or quasi-judicial investigative and truth telling bodies. Within 102 peace agreements between 1990 and 2016 which included some sort of institutional mechanism or body to ‘deal with the past’ (combining all the peace process states), a truth-seeking mechanism was provided for in 44 agreements and inquiry commissions were part of 26 agreements (Jamar and Bell, 2018).
Asserting the link between gender and transitional justice in the peace agreement may be an important first step to remedying a lack of attention to gender in the eventual measures of transitional justice (Jamar and Bell, 2018).
A definition of victims that includes those who have experienced structural oppression as well as physical violence or abuses should be encouraged. Those designing inclusion policy should think in creative ways around how they define victims and perpetrators. Approaches should leave the door open for different forms of participation and a variety of narratives to emerge (Jamar, 2018; Jamar, 2021).
Inclusion efforts often centre around categorising victims based on gender, age, ethnicity or group belonging. This approach does not engage with the fluid social and political identities of the victims or the groups and individuals who represent them and may operate to constrain rather than empower victim participation (Jamar, 2018; Jamar, 2021).
Victim identities should be approached in a receptive and intersectional way. These approaches should understand how the different political positions and gender and socio-economic backgrounds of individuals shape inclusion efforts (Jamar, 2018; Jamar, 2021).
This collection on transitional justice sits as part of a library of essays on different concepts of ’justice’. Yet transitional justice appears quite different from other types of justice and fundamental ambiguities characterise the term that raise questions as to how it should sit alongside other concepts of justice. This collection attempts to capture and portray three different dimensions of the transitional justice field: the origins of the field; parts of the ’tool-kit’ of transitional justice; and how the field is un-folding and extending to new transitions, tools, theories of justice, and self-critique.
This chapter addresses the difficulties in designing and implementing transitional justice in societies attempting to move on from conflict. It does so in part to show how transitional justice mechanisms in transitions from conflict differ from those in transitions from authoritarianism, particularly with regard to the strategic choices that are involved. The author argues that transitional justice in post-conflict settings needs to be understood as part of the broader political settlement process in which domestic and international actors are engaged. This process attempts to (re)construct the state to reconfigure how power is held and exercised so as to include previously excluded actors and groups in ways that will end violent conflict. Centrally, peace processes involve negotiations between states and their non-state opponents, with a view to including the latter in new or revised state structures. Political bargaining occurs through both formal, usually elite-level, talks and other less visible informal processes.
The Amnesties, Conflict and Peace Agreements (ACPA) dataset aims to provide detailed qualitative descriptions of amnesty processes. As of July 2020, it contains qualitative data on 289 amnesties that are introduced during ongoing conflict, as part of peace negotiations, or in post-conflict periods from 1990-2016 in all world regions.
This research report explores when and how amnesties are used during conflict and transitions towards peace. In particular, it examines how the context in which amnesties are adopted can shape decisions on whether to limit the material or personal scope of amnesties or to attach conditions to the grant of amnesty; or on their range of legal effects. The report draws on the Amnesties, Conflict, and Peace Agreement (ACPA) dataset to conduct a large-scale comparative analysis of trends in state practice on conflict and peace-related amnesties.
This paper was developed as a follow-up to the Fifth Edinburgh Dialogue on Post-Conflict Constitution Building held in December 2018. The paper responds to the need for stronger coordination amongst peacebuilding, development and justice responses in fragile situations with a focus on the interactions between two particular processes: transitional justice and constitution-building.
This brief sets out a gender and women’s rights analysis of transitional justice in peace agreements. Transitional justice mechanisms provide a measure of accountability, and women who have experienced human rights violations and conflict-related atrocities may seek justice and guarantees of non-repetition.
This article examines the articulation of commitments towards inclusion and victimhood agreed upon within peace processes. It builds on original and comprehensive empirical material to scrutinize provisions for victims’ inclusion in all peace agreements signed from 1990 to 2016. The article finds that the conceptualizations of ‘victimhood’ and ‘inclusion’ are mostly gender and politically blind; inclusion efforts are often pursued without consideration for political and socio-cultural issues.
This report reviews efforts to include victims in transitional justice programmes, and the difficulties of managing the politics of inclusion in the transitional justice setting. It draws on empirical data from peace agreements and fieldwork in Burundi to scrutinize how inclusion is provided for in peace agreements on paper, and in post-agreement practice.
In reflecting on the contemporary challenges and future directions of transitional justice theory and practice, this article addresses causality, accountability and political form in a triangulated assessment of nationalism’s power and ‘stickiness’ in the present formulations of transitional solutions. The authors provide a pragmatic, perhaps cynical account of the triumph of consociationalism as the preferred transitional accommodation, and point to the ‘dark side’ of governance arrangements in postconflict settings with implications for understanding cycles of violence and repeat conflict patterns. In both contexts, the article deploys a feminist lens to understand the implications for women and gender transformation emerging from our framing of the politics of transitional justice in the contemporary moment.
This working paper reflects on the relationship of transitional justice theory and practice with consociational theory examining how both interact with respect to enabling or limiting conflict transformation in deeply divided ethnic polities. In particular, the paper examines how transitional justice interacts with different forms of power-sharing; the tensions in the peace versus justice debates which are central to TJ theory and practice and how they interact with consociational forms of governance; the relationship between community versus individual rights in consociational settlements; and how the emphasis on TJ theory and practice on ‘bottom-up, victim led’ processes interact with consociational debate on grassroots versus elite interactions.