Legal scholar Ruti Teitel describes transitional justice as having gone through three historical phases. The first was right after the second world war, as the UN was also taking shape, with the Nuremberg trials that attempted to hold high-ranking Nazi officials accountable for various crimes against humanity. With the emergence of the Cold War, transitional justice as a post-conflict reconstruction strategy fell dormant until the early 1990s, when the collapse of the Soviet Union changed the international landscape and opened up new options for transitional processes.
The mid-1990s saw the rise of a number of cases that would go on to become pillars of transitional justice discourse, including the South African TRC as well as the establishment of the ICTR and ICTY. This, according to Teitel, was the second wave of TJ activity and discourse. A third wave, which we are currently living through, is said to be defined by globalization and an attempt to develop more linkages between the global and the local.
Each TJ process, and the related tribunals that came with it, has been unique and a source of new lessons or standards. International law has evolved enormously since the Nuremberg trials or even the genocides in Rwanda or Bosnia. It will take years to determine the extent of their impact, as well as those of processes in the Middle East, Asia and South America, but there have been many who have displayed great optimism for what can be accomplished.
That said, a main trait of the transitional justice process is that these processes often have to come at the invitation of the governments involved, or in the wake of state collapse. This creates a major dilemma: TJ processes are meant to establish the truth of either a violent conflict or an oppressive regime, and this type of regime typically doesn't invite commissions to come in to establish truth or set up a transition.
There are cases where TJ processes are a result of internal transitions, like in South Africa, or in official (if contested) attempts at reconciliation, like in Canada. There are many more cases, however, where transitional justice mechanisms are triggered after periods of violent revolution, humanitarian intervention or other forms of military victory, as happened in Rwanda and the former Yugoslavia.
The ideal of consent is key but entirely fraught. Respecting a country's sovereignty is important, and so grave conditions (like genocide) are a prerequisite for intervening in a way that would open up the possibility for transitional justice but also come at the cost of local autonomy. This is, in part, why there is such controversy over whether or not to call Chinese treatment of its Uyghur minority genocide
– since so many countries have declared to "never again" be bystanders to atrocity, there are hints in this kind of language of a moral duty to act on the Uyghur's behalf.
There's also the issue or whether or not there are ulterior motives behind self-described humanitarian interventions, as was claimed by many concerning the US invasion and occupation of Iraq in the 2000s. One point discussed in the literature mentioned below was whether ongoing instability in that country was due to the lack of nation-wide, locally-owned TJ structures following the fall of Saddam Hussein and his government.
Traditional liberal conceptions of transitional justice are also challenged by what's becoming known as authoritarian conflict management
(ACM), which will be mentioned in brief in our next lecture on conflict management
. ACM, rather than privileging inclusion, democratic structures and institutional power-sharing, advocates for centralization of power and other authoritarian measures aimed at consolidating executive power and manufacturing stability.
The participation of a country's executive power
is important in the TJ process, because there needs to be a certain amount of acceptance for the new system to prove resilient. A given executive's resistance to TJ measures is often what makes certain commentators throw up their hands – if TJ is dependent on elite participation in a process that will divest them of powers they're misusing, then what can incentivize the process other than complete collapse? What, then, can the true reach of TJ be?
Powerful countries with Security Council status, like China, Russia or the United States, are less likely to be pressured into processes like TJ, as are nuclear powers like India or Pakistan, though international coalitions attempt to do so using soft power or sanctions regimes. These strategies come with their own consequences, however, and the question remains as to how to pressure stable executives into incorporating "threatening" voices or diverging claims to institutional power.