An Introduction to
Transitional Justice
Habib Nassar
The Raphael Lemkin Seminar for Genocide Prevention
November 2015
Summary of the Session
 What is TJ?
 A brief history of TJ and its evolution
 A look at the normative framework/foundation
 An overview of the main TJ approaches/processes
 Where does the field stand today? Challenges and Possibilities
 Between norms and reality: Possible group exercise
Dissecting Transitional Justice
 Paradigms of transition
 What are the typical characteristics of a transition?
 Why justice?
 Justice for what? What legacy(ies)
 How to deliver justice in times of transition?
Definitions of TJ
 “The notion of “transitional justice”… comprises the full range of processes and mechanisms
associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in
order to ensure accountability, serve justice and achieve reconciliation. These may include both
judicial and non-judicial mechanisms, with differing levels of international involvement (or none
at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and
dismissals, or a combination thereof.” UN Secretary-General Report on The rule of law and
transitional justice in conflict and post-conflict societies, August 2004
 “This issue for [Transitional justice] … is to determine which elements of truth, justice, and
clemency measures are compatible with one another, with the construction of democracy and
peace, with emerging standards in international law, and with the search for reconciliation. The
most appropriate mix will depend on context, circumstances, and the free and rational choices
made by local actors (choices that the international community should feel bound to respect).”
Juan Mendez, National Reconciliation, Transitional Justice and the ICC, Ethics and International
Affairs, Spring 2001
The Latin American Moment
Some features:
• Negotiated transitions
• Amnesties
• Strong role of civil society and victims groups
• Very limited role of external actors
• The corrective role of the Inter-American Human Rights system
The cornerstone of normatization:
• The Velasquez Rodrigues v. Honduras Case
Velasquez Rodriguez Case (1988)
“States must prevent, investigate and punish
any violation of the rights recognized by the
[American] Convention and, moreover, if
possible attempt to restore the right violated
and provide compensation as warranted for
damages resulting from the violation”
(Paragraph 166)
Normatization in Progress
 The Joinet Principles (1997) and the right to an effective remedy (Art.
2 ICCPR) :
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The right to know
The right to justice
The right to reparations
Guarantees of non-recurrence
 Diane Orentlicher revisits the Joinet Principles (2005) reinforcing the
prosecutorial component.
 International treaties: Geneva conventions, Genocide Convention,
CAT
Judicial Accountability
 Domestic/national trials
 International tribunals
 Hybrid tribunals
 Universal jurisdiction
Judicial Accountability
 “Regulated vengeance”
 Individual responsibility v. collective guilt
 Establish a precedent
 Reinforce domestic judicial system
Truth-seeking
Commissions of Enquiry
Fact-finding Bodies
Truth commissions
Civil society truth-seeking efforts
Truth-seeking
Reparations
 Restitution/Compensation/Rehabilitation/
Satisfaction/Guarantees of non-recurrence
 Individual/Collective
 Material/Symbolic
The Post-ICC Moment
 The “impunity gap theory” and the centrality of criminal justice
 The boom of the TJ Industry
 The intense standardization
 The technical superseding the political
Where we stand today and the post-Arabic
Spring moment
 When Norms clash with reality: Yemen’s UN fiasco, Libya’s victor’s justice
process, Egypt’s show trials, Tunisia’s hotchpotch TJ law
 Incapable of capturing complexities of the context and root causes of
conflict or authoritarian system
 Marginalization of local ownership
 Undermining local creativity
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You have been asked to advise the UN Envoy on Syria on TJ
4-5 groups
List four recommendations.
4 years conflict left 250K killed, half of the population displaced. War
crimes and CaH have been documented by UN commission and NGOs.
Multilayered conflict: Anti-oppression, sectarian, regional and
international actors involved.
Legacy of more than 40 years of dictatorship marked by pervasive use of
torture, political imprisonment, enforced disappearance and mass killings.
Legacy of sectarian divisions and economic marginalization of entire areas
of the country.
Legacy of corruption and cronyism sustaining repressive apparatus.