dissertations on transitional justice

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Dissertation Thesis: Transitional Justice in Formal Peace Negotiations

With the escalating worldwide destructive impact of new civil wars, finding a resolution to armed conflicts is an urgent global need. Some scholars of conflict resolution have empirically focused on methods, policies and issues in negotiations leading to the achievement of peace deals, their implementation, as well as the reasons peace deals fail (e.g. Joshi, Quinn, & Regan, 2015). Empirical studies on conflict resolution have also centered the issue of justice, relating to policies of transitional justice implemented in the post-conflict period, such as reparations, amnesties and truth commissions (e.g. Wallensteen, Melander, & Högbladh, 2013). However, to date, with few notable exceptions (e.g. Loyle & Binningsbø, 2016), little empirical work has examined transitional justice during the course of armed conflict; the concern is that negotiations on the issue of historical wrongdoings may exacerbate an ongoing conflict (Bland, Powell and Ross, 2012). However, specific peace negotiations, such the recent Colombian governments' negotiations with the FARC, show that agreements on transitional-justice issues were important for achieving the final deal. Without an empirical analysis of transitional justice during peace negotiations, we may undervalue its impact on finding resolutions for armed conflicts worldwide. My dissertation project, Transitional Justice in Formal Peace Negotiations, deals with the impact of agreements on transitional justice provisions on reaching peace deals. This project is based on a large original dataset of peace processes years that covers over 70 peace processes between 1989 and 2014. By empirical testing of a set of new theoretical conjectures, I found that a combination of truth and reconciliation provisions, as well as amnesty provisions, are associated with an increase in the odds that the peace negotiation ends in a final peace deal. In contrast, provisions dealing with reparations for victims or with rehabilitation of refugees are not significantly associated with reaching final accords. To substantiate the empirical analysis, I also provide a discussion of examples from peace negotiations in Colombia, Liberia, Israel-Palestine and Guatemala. The research concludes that agreements on truth and reconciliation provisions serve as an alternative form of justice and accountability and can be an effective compromise between demands for retributive measures on one side and calls for forgetfulness on the other.

Related Papers

International Journal of Peace Studies

The expansion of international trials over the last decades has reinvigorated the debate surrounding the efficacy of retributive justice over restorative justice in response to mass humanitarian crises. This study examines the ways different transitional justice models contribute to stable peace. It suggests that a hybrid utilization of both restorative justice mechanisms (e.g., amnesty) and retributive justice mechanisms (e.g., trials) is most effective in achieving a stable peace in a post-accord state, and that context is an important intervening factor. Using a mixed method approach, I first examine a group of 25 test cases, analyzing the relationship between restorative and retributive justice and post-conflict stability. I then examine more closely the paradigmatic case studies of El Salvador, Rwanda, and Mozambique in order to see how the three dominant models worked within individual country contexts. While the data suggests some linkage between the hybrid model and post-conflict stable peace, there are intervening factors (such as culture, alignment of narratives with elite and popular interests and values, and international legitimacy), which are also at work.

Leslie Vinjamuri

A basic dilemma for political transitions and peace talks, whether to hold perpetrators of mass atrocities accountable or to negotiate a deal, has once again become the source of intense political controversy. Originally seen as containing a pathbreaking and innovative solution to this problem, a peace deal designed to bring an end to the war between the government of Colombia and the FARC was instrumentalized by former President Uribe to mobilize popular support and was struck down when it was put to the public for a vote. Elsewhere, political realities have impinged on efforts to hold trials, provoking a backlash by powerful individuals determined to spoil the peace rather than sacrifice their personal freedom. But when international criminal tribunals fail to prosecute powerful spoilers, they have been condemned for their hypocrisy or charged with being selective in their pursuit of justice. One measure to address the basic accountability dilemma would be to accept transitional j...

Sam Ling Gibson

This paper critically analyses the attributes and merits of the ‘prenegotiation’ phase within the dynamic wider peace process. I use the completed El Salvadorian and the present Colombian processes as a comparative framework, to argue that without this initial stage, the subsequent ‘negotiation’ and ‘implementation’ stages of arbitration will transpire with a diminished efficacy and ultimately a lesser likelihood of achieving a meaningful and long-term sustainable peace, or at worse would simply not take place at all.

Group Decision and Negotiation

Lynn Wagner

European Journal of International Law, 2016

‪michal saliternik‬‏

Peace agreements often harm disempowered groups such as women, ethnic minorities, and the poor, who bear the main burden of compromise. This article argues that international law can and should promote a more equitable allocation of the burden of peace by applying to peace negotiations procedural justice requirements of participation, transparency, and reason-giving. Drawing on insights from negotiation literature, public choice analysis, deliberative democracy theory, and social psychology, the article explains that such procedural regulation can enhance the democratic quality of peace agreements and at the same time also improve peace prospects. It also notes, however, that procedural justice may entail serious costs, including delays and the loss of maneuvering space for negotiators. The article argues that a careful design of procedural justice methods and mechanisms can significantly reduce these costs, and makes some concrete proposals to that effect. Finally, the article examines existing international instruments that may introduce procedural justice principles into peace negotiations, and assesses their potential and limitations. All in all, this article shows that despite, and also because of, its exceptional nature, peacemaking should not be left to the exclusive discretion of unaccountable negotiators.

Review of International Studies

Daniel Druckman

This study explores the relationship between principles of distributive justice (DJ) and the durability of negotiated agreements. Sixteen peace agreements negotiated during the early 1990s were coded for the centrality of each of four principles of DJ – equality, proportionality, compensation, and need – to the core terms of the agreement. The agreements were also assessed on scales of implementation and durability over a five-year period. Another variable included in the analysis was the difficulty of the conflict environment. These data were used to evaluate three sets of hypotheses: the relationship between DJ and durability, the role of the conflict environment, and types of DJ principles. The results obtained from both statistical and focused-comparison analyses indicate that DJ moderates the relationship between conflict environments and outcomes: when principles of justice are central to an agreement, the negative effects of difficult conflict environments are reduced; when p...

Estefania Liehr

For over 50 years, Colombia has been at war, a war for land and political inclusion (among other), and in the process. The country has been shattered by left wing guerrillas, right wing paramilitaries, death squads, hired killers, corrupt security forces, drug cartels, oligarchy, massive inequality and poverty, and an alarming rate of internally displaced persons (“property rights…”, 2013: 1; Coatsworth, 2003; “Colombia’s killer networks”, 1996; Dent, 1974). This thesis identifies and analyzes different factors that may affect peace negotiations. Given the history of failures in Colombian efforts for peace, and that there are current negotiations between the largest guerrilla group and the government, it is important to identify determinants that may have damaged past attempts and thus may pose a threat to the current ones. In order to do this, the literature on peace agreements and conflict will be examined and the most important factors will be singled out. With these chosen factors/determinants as a theoretical basis, the negotiations between the Colombian government and the FARC will be analyzed using process tracing.

PsycEXTRA Dataset

Scott Gates

Negotiation and Conflict Management Research

Pablo Kalmanovitz

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Walden Dissertations and Doctoral Studies

The impact of transitional justice on conflict resolution and the maintenance of peace.

Joe Lambongang , Walden University Follow

Date of Conferral

Public Policy and Administration

Gloria Billingsley

Ethnic conflicts persist in Ghana despite the efforts of governments to resolve them. Governments are increasingly concerned not only about their massive human rights abuses and wide-scale destruction of property that characterize these conflicts, but also the difficulty of resolving them and restoring permanent peace. The purpose of this qualitative exploratory case study was to provide a deeper understanding of the processes and mechanisms of transitional justice implemented in Dagbon after war broke out in 2002 and explore the conditions under which these initiatives can be more effective in resolving the conflict and maintain peace. Data were collected through individual interviews, focus group discussions, and review of documents. Thirteen participants were purposively selected from communities, chiefs, and representatives of civil society organizations. Focus groups consisted of four men and four women. NVivo was used to manage and analyze the data. Data were analyzed using the theory of protracted social conflict as a lens and the concept of transitional justice as the conceptual foundation. The findings showed that a mixture of formal retributive and restorative initiatives was implemented. These were imposed on informal institutions and rules more deeply rooted in Dagbon. The institutions also suffered undue pressure from both government and elite of Dagbon which made peacebuilding difficult. A recommendation was made for government to strengthen the Dagbon Traditional Council to lead the conflict resolution process using traditional approaches, and identify and empower a credible civil society group to facilitate the process. The results could potentially change the way the conflict resolution initiatives have been conceptualized and managed in future.

Recommended Citation

Lambongang, Joe, "The Impact of Transitional Justice on Conflict Resolution and the Maintenance of Peace" (2017). Walden Dissertations and Doctoral Studies . 3899. https://scholarworks.waldenu.edu/dissertations/3899

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Electronic Theses and Dissertations

Redefining transitional justice in the north american context the maine wabanaki-state child welfare truth and reconciliation commission.

Evan P. Centala , University of Maine Follow

Date of Award

Spring 2016

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Open-Access Thesis

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Master of Arts in Interdisciplinary Studies (MAIS)

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Darren Ranco

Second Committee Member

Yvonne Thibodeau

Third Committee Member

This thesis argues that a transformative justice discourse needs to be adopted by the current field of transitional justice in order to account for the many developments in the field. Using the case of the Maine Wabanaki-State Child Welfare Truth and Reconciliation Commission, it presents the innovative approaches and unique context the Commission operates in, following a transformative methodology to affect fundamental social change through the political, economic, and social structures that allowed the violence and harm in question to pass. Distinguishing itself from a transitional context where regime change exists with an objective to establish democracy, this thesis suggests that the Commission orients itself around a goal of human security, a goal that should be made critical to the transformative discourse. Demonstrating that the Commission supports a transformative methodology, this thesis rejects the notion of a North American context within the field and recommends more recent processes of transitional justice be analyzed and categorized under a new transformative discourse.

Recommended Citation

Centala, Evan P., "Redefining Transitional Justice in the North American Context? The Maine Wabanaki-State Child Welfare Truth and Reconciliation Commission" (2016). Electronic Theses and Dissertations . 2428. https://digitalcommons.library.umaine.edu/etd/2428

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Assessing the impact of transitional justice mechanisms in post-conflict societies: Lessons drawn for Libya

--> Eshkal, Soad (2019) Assessing the impact of transitional justice mechanisms in post-conflict societies: Lessons drawn for Libya. PhD thesis, University of Sheffield.

Over the course of the last three decades, judicial and non-judicial mechanisms of transitional justice as defined by the UN have been used to address legacies of past grievances and violations in a number of post-conflict societies. This thesis is an exploration of the viability and efficacy of transitional justice mechanisms in providing justice, promoting reconciliation, establishing viable democracies and achieving sustainable peace in the aftermath of conflicts. By assessing the earlier experiments with the application of international and local justice mechanisms, it draws out lessons for the Libyan case. It evaluates the application of three models of transitional justice: retributive justice with the trials at the ICC and national courts; restorative justice; and customary justice mechanisms in transitional societies in general and Libya in particular. Such an evaluation is intended to make the case for transitional justice mechanisms that are reconciliatory and locally relevant. In the case of Libya, the dissertation assesses the transitional justice mechanisms conducted in post-Gaddafi Libya to date in the light of achieving desired goals of transition. It also explores the application of what it terms customary justice mechanisms used mostly in Libya to achieve reconciliation and lasting peace. The study considers the role of ‘Orf’ in resolving the conflicts and bringing people together again. It combines unique data on local perceptions regarding conflict resolution mechanisms with insights from the literature, to critically examine the viability and efficiency of engaging customary justice mechanisms in Libya in achieving sustainable peace and national reconciliation. The key finding of this exploration is that local justice mechanisms are more effective in fostering such objectives than criminal prosecutions.

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Ramapo College of New Jersey Home Page » Academics » SSHS » Ramapo Journal of Law & Society » Thesis » Transitional Justice: The Key to Democracy, Development, and Sustainable Peace within Transitioning Societies in Latin America

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Transitional Justice: The Key to Democracy, Development, and Sustainable Peace within Transitioning Societies in Latin America

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( PDF ) (DOC) (JPG) September 17, 2020

Brianna Weissman [*]

Transitional justice is a key player in international law. It is an important tool utilized by societies that are transitioning from repressive regimes to democracies. It has a long history that traces back to the post-World War II period and began to take official shape in the late 1980s through the 1990s. Transitional justice is not an institution. Rather, it is number of different measures that aim to achieve justice for those who have been subjected to gross human rights violations. Transitional justice can take place in the form of both judicial and non-judicial measures, including truth commissions, reparation programs, criminal prosecution, institutional reforms, and memorialization efforts.

The implementation of transitional justice measures has played a significant role in Latin America. Many transitional justice measures were pioneered in Latin America. The question of “whether trials of leaders in the style of Nuremberg could be successfully followed in the Americas” was first asked in Argentina (Teitel, 2003, p. 75). In response to this question, truth commissions were first utilized in Argentina. Truth commissions typically succeeded in Latin America. They were best used “where the predecessor regime disappeared persons or repressed information about its persecution policy” (Teitel, 2003, p. 79).

Latin America is the region that has the longest history of practicing transitional justice measures, such as truth commissions and human rights trials. These measures have proved to play a pivotal role in Latin American countries transitioning from repressive military governments, where impunity reigned, to democracies. The case studies of Chile, Argentina, Guatemala, and Colombia demonstrate the importance of transitional justice measures to the advancement of democracy, respect for human rights, and the creation of sustainable peace.

The history of transitional justice

There is no clear point in history where transitional justice emerged. However, there is a consensus that the term gained recognition and meaning in the late 1980s through the 1990s. The field of transitional justice is defined as “an international web of individuals and institutions whose internal coherence is held together by common concepts, practical aims, and distinctive claims for legitimacy” (Arthur, 2009, p. 324). Transitional justice is the brainchild of people from different backgrounds. These include policymakers, legal scholars, journalists, lawyers, human rights activists, and comparative politics experts.

An important milestone in the formation of transitional justice was the 1988 Aspen Institute Conference, which “sought to clarify the political, moral, and legal challenges that those seeking justice for state crimes faced in the democratic transitions in the 1980s” (Arthur, 2009, p. 349).

Conference participants discussed, among other issues, international law obligations to punish human rights violators, whether states have a minimal obligation to reveal past violations, and how a society should deal with addressing human rights abuses carried out by armed forces.

Alice Henkin, the conference’s organizer, noted in the Conference Report that participants agreed that there was no general obligation under customary international law to punish human rights violators (Arthur, 2009, p. 352), but there was an obligation for states to establish the truth regarding past violations. There was much debate among attendees regarding the role of discretion and prudence. Some argued that political judgement held importance in developing transitional justice policies, others became frustrated with such an idea. Lastly, it was decided that there should be a specific set of measures for dealing with human rights abuses by the military.

The field of transitional justice was furthered in 1995 with the publication of Neil Kritz’s Transitional Justice: How Emerging Democracies Reckon with Former Regimes . Kritz set forth a definition of transitional justice, proclaiming that it was “something undertaken by ‘emerging democracies’—states that had undergone a change of regime” (Arthur, 2009, p. 331). The book recalled the experiences of countries such as Chile, Czechoslovakia, and Belgium as they successfully transitioned from repressive regimes to democracies. Telling these stories was thought to benefit countries who were going through the process themselves.

Timothy Gorton Ash, in his review of Kritz’s work for The New York Review of Books, argued that “no word or phrase existed in English that captured the full range of all [of transitional justices’] attending processes” (Arthur, 2009, p.332). He asserted that historians are the only group capable of serving justice to the past. Ash’s critique revealed what had been missing from Kritz’s book: the 1980s German Historikerstreit (historians’ debate). At the time, the historians’ debate was “a sophisticated, and highly public, conflict about how to interpret the Nazi era and the Holocaust” (Arthur, 2009, p. 332). More importantly, it aimed to decide both how and when “the memory of such events might be ‘overcome’ or ‘mastered,’ and a more positive image of German history accepted” (Arthur, 2009, p. 332). Kritz’s proposed term, by contrast, was associated with short-term political problems that could be solved in a transitional period.

Transitional justice has been practiced far before the term was officially coined. Ruti Teitel, a professor of comparative law at New York Law School, breaks down the evolution of transitional justice in three phases. The first phase took place in the postwar period, following World Wars I and II; the second phase took place following the Cold War; and the third phase is referred to as the ‘steady-state’ phase, and is what we are currently in. Each phase is unique and builds upon the others to develop what is now known as transitional justice.

The first phase of transitional justice is the postwar phase. It “encompasses the post-World War II model of justice,” but “the history begins earlier in the century, following World War I” (Teitel, 2003, p.72). This phase is characterized by international involvement in judicial proceedings and assertion of the rule of law. Justice came in the form of national trials and monetary sanctions, both of which were criticized. After World War I, there were unsuccessful national trials, such as the Leipzig War Crimes Trials. Additionally, monetary sanctions against Germany are posited as a leading cause for their involvement in World War II.

Following World War II, transitional justice was approached differently. As the post-World War I national trials had been unsuccessful, the focus shifted towards “international criminal accountability for the Reich’s leadership”. This “turn to international criminal law and the extension of its applicability beyond the state to the individual” was a breakthrough for transitional justice (Teitel, 2003, pp. 72-73).

The second phase is referred to as the post-Cold War period. This phase began with the triumph of the United States over the Soviet Union and the “attendant proliferation of political democratization and modernization” (Teitel, 2003, p. 75). At this point, leaders were wary to host trials such as the Nuremberg Trials, in fear that they may not be successful. For the most part, international involvement was minimal in this phase. This was intentional, as it would prove the competency of new regimes.

The post-Cold War phase can be characterized by truth commissions and restorative justice. Truth commissions served to “investigate, document, and report upon human rights abuses within a country over a specified period of time” and were desirable for their “ability to offer a broader historical perspective” compared to trials (Teitel, 2003, pp. 78-79). In the postwar phase, transitional justice efforts had the goal of asserting the rule of law. In this phase, the goal shifted to fostering peace within transitioning societies. The actors in this phase also changed. Political and legal actors      shifted to actors with moral authority, such as human rights groups. Legal action was no longer the main goal.

By the late 1990s, “there were persistent calls for apologies, reparations [and] memoirs … all related to past suffering and wrongdoing” (Teitel, 2003, p. 85). The international community had previously adopted the UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. In this phase, it became clear that transitional justice would not be time sensitive. Here, the question of state sovereignty and jurisdiction were commonly raised. It was argued that transitioning societies may not be competent to hold their own trial or truth commissions, despite the benefits of doing so.

The third and final phase is referred to as “steady-state transitional justice” (Teitel, 2003, p. 89). This phase is characterized by the normalization of transitional justice. We see the creation of the International Criminal Court and a turn back to international involvement. The ICC has the lofty responsibility of prosecuting “war crimes, genocide, and crimes against humanity as a routine matter under international law” (Teitel, 2003, p. 90). The goal of this phase remains to advance human rights protections while still asserting the rule of law.

Transitional justice methods

Transitional justice measures take different forms, both judicial and non-judicial, including criminal prosecutions, truth commissions, reparation programs, institutional reforms, and memorialization efforts. Each of these measures has the ability to contribute restorative justice or retributive justice to societies undergoing transitions. When implemented properly, these mechanisms are useful to victims seeking democracy, development, and peace within their societies.

Criminal prosecutions

Criminal prosecutions are one of the most commonly used and understood transitional justice measures. Criminal prosecutions can develop the rule of law, put an end to impunity, and act as a deterrent for future crimes. Evidence collected during criminal prosecutions also helps to create accurate historical records of atrocities, making them difficult to deny. Most importantly, criminal prosecutions can aid in the development of stable institutions for newly transitioning societies.

Criminal prosecutions as a transitional justice measure are most commonly held for three crimes: war crimes, genocide, and crimes against humanity. War crimes are serious violations of international humanitarian law, such as mutilation, torture, sexual slavery, unlawful confinement, and unjustified destruction of property. These laws are codified in treaties such as the Geneva Conventions of 1949 and the Rome Statutes. Genocide, defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, encompasses acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” (Article II). These acts can include inflicting severe mental or bodily harm, killing, and attempting to prevent births. Crimes against humanity can also occur during both armed conflict or a time of peace. Crimes against humanity are most commonly directed towards civilian populations by state actors. The founding statutes of institutions such as the International Criminal Court and some international criminal tribunals lay out the framework of what constitutes a crime against humanity: extermination, torture, rape, forced disappearances, and murder all constitute crimes against humanity.

Criminal prosecutions can take place in a number of different courts, including domestic courts, hybrid courts, and institutions such as the International Criminal Court (ICC). Domestic courts are the most beneficial venues for criminal prosecutions as a transitional justice mechanism. The use of domestic courts “helps to ensure that parties understand the law, witnesses have easy access to the courts, and public awareness is maximized” (US Department of State, 2016a). This is not an easy task, as many societies going through transitions most often do not have the resources to effectively hold prosecutions. Latin America has an extensive history of successfully using domestic courts for criminal prosecutions.

Hybrid courts “combine domestic and international elements,” “may be staffed by a mix of international and domestic judges, prosecutors, and court officials, and they may apply elements of both international and domestic law” (US Department of State, 2016a). Hybrid courts are usually created within the affected country, which allows the society in question to remain in charge, while assistance from international actors can be provided where it is needed.

Lastly, criminal prosecutions can be held at the International Criminal Court. The Rome Statute created the ICC and gave it power to “investigate and adjudicate cases of individuals accused of responsibility for war crimes, crimes against humanity, and genocide” (US Department of State, 2016a). There are a few limitations on the ICC. The Court only has jurisdiction over crimes that occurred after its creation on July 1, 2002, and only over countries that are parties to the Rome Statute. Currently, there are 123 state parties to the Rome Statute. The ICC is also a court of last resort, meaning countries should only turn to the ICC if authorities are either unwilling, or unable to carry out prosecutions domestically. The ICC lacks a police force, so when warrants are issued, countries are responsible for capturing and turning over criminals, which is often difficult to accomplish. Despite these challenges, the ICC has delved into cases in places such as Kenya, Sudan, and Libya.

There are a number of things to consider when using criminal prosecutions as a transitional justice measure. Prosecutions must remain impartial and independent. This is often difficult for domestic trials because many of the legal actors may have been involved in the conflict themselves. Due process is another important factor in these trials. One of the main purposes of prosecutions are to “reinforce the norm that each person, regardless of his or her position, is subject to the rule of law and benefits from legal protections” (US Department of State, 2016a). The assurance of due process can be difficult for domestic courts and in transitioning societies with weak traditions of due process. Criminal prosecutions can also require extensive amounts of resources. Often times countries are not able to provide these resources, which include time, money, judges, prosecutors, and investigators. Despite many obstacles, criminal prosecutions can be a very helpful tool to transitioning societies. They can aid in the development of the rule of law in countries while helping victims gain justice.

Truth commissions

Truth commissions are one of the oldest and most effective transitional justice mechanisms. They are a non-judicial measure “designed to investigate and report on past situations involving large-scale and often systematic atrocities” (US Department of State, 2016d). Truth commissions can either be put together by the state where the atrocities took place, or by the United Nations. They are generally made up of a combination of international and national actors, and have been utilized by over 30 countries around the world.

Their main goal is to “collect statements from a broad array of stakeholders including victims, witnesses, and perpetrators” (US Department of State, 2016d). They try to identify any possible patterns within the abuse and discover the causes of such violence. At the end of the truth commission, a public report is issued which provides recommendations for ways in which future abuses can be avoided and sustainable peace and stability can be achieved.

There are many advantages to using truth commissions, such as their focus on victims. Unlike prosecutions, truth commissions do not focus on punishment. Instead, they provide a safe place for victims to have their stories heard. Victims can come forward confidently because “truth commissions can be given the authority to engage with victims under conditions of anonymity and confidentiality” (US Department of State, 2016d). Truth commissions also have the ability to provide an accurate historical record of the events that occurred.

There are a few guiding principles for truth commissions. First, a truth commission “should be designed and implemented in a way that demonstrates that it is free from political manipulation, treats all sides fairly, and is open to public scrutiny” (US Department of State, 2016d). The process should be as transparent as possible, and findings and recommendations should be made public. Second, during the development and operation of the truth commission, it is essential that a number of groups are included. These groups include women, children, victims, and other smaller, more marginalized groups. Their involvement increases participation and knowledge of the process. Lastly, truth commissions are most effective when paired with other transitional justice measures. They are only able to provide recommendations on how a society should proceed, but it is up to the people to prosecute criminals and provide for victims.

Reparations

Reparations, also commonly referred to as reparative justice, is another commonly used transitional justice measure. Reparation programs focus on acknowledging the needs of victims or redress, and seek to address “the consequences as well as the cause of violations in material and symbolic ways” (US Department of State, 2016c). Reparations are the most meaningful way for justice to be given to victims, but they are also usually given last priority.

There are a number of different types of reparations. The first type is restitution. The goal of restitution is to restore the victim to their original status, prior to the violation. Examples include returning property or jobs which may have been taken. Monetary compensation is another form of reparation. Compensation is often provided to those who have suffered both mental or physical injury and require medical services. Rehabilitation is a form of reparation which “seeks to mend the harm suffered, usually through medical and psychological care as well as legal or social services” (US Department of State, 2016c). Satisfaction is a type of reparation which includes official recognition of the harm done and suffering caused. This can take the form of a public apology, memorials, or conducting searches for missing persons.

On December 16, 2005 the U.N. General Assembly adopted and proclaimed the Basic Principles on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law . According to this document, “the party responsibly for the violation or abuse is primarily responsible for providing reparation.” Challenges associated with reparations include ensuring that each victim is addressed fairly and their needs are met, making sure victims are given the opportunity to fairly participate, and dealing with disparities such as class and gender.  

Institutional reforms

Institutions such as the judiciary and armed forces, including police and military, are generally a main perpetrator of human rights violations and sources of repression. Reforming such institutions is a vital transitional justice measure to ensure violations will not take place in the future. The International Center for Transitional Justice defines institutional reforms as “the process of reviewing and restructuring state institutions so that they respect human rights, preserve the rule of law, and are accountable to their constituents” (ICTJ).

Institutions should be restructured to increase both legitimacy and integrity. The implementation of oversight bodies should ensure accountability to (civilian) governance within different state institutions. Institutional reforms can also include the creation of new legal frameworks, primarily constitutional amendments or international human rights treaties. Providing education to employees of these institutions on different human rights standards is another way in which transitioning societies can reform their institutions.

Perhaps one of the most important examples of institutional reforms is the process of lustration and vetting. Lustration is defined by the United States Department of State as “a policy put in place by post-conflict or post-authoritarian governments to remove from public institutions personnel who have been implicated in activities that call into questions their integrity and professionalism.” Vetting is the process which implements lustration policies. A thorough vetting process will generally include examination of “current personnel while also developing screening procedures to prevent the future recruitment of personnel implicated in abuses” (US Department of State, 2016b).

Institutional reforms are an important key to transitioning societies. Processes such as structural reform, implementing oversight bodies, and lustration and vetting are often overlooked. However, they are some of the most essential processes in ensuring non-recurrence of grave human rights abuses and atrocities.

Memorialization efforts

The use of memorialization has become an increasingly popular transitional justice mechanism. Memorials can include monuments, museums and other historic sites. Societies transitioning out of oppressive regimes where human rights abuses occurred “see public memorialization as central to justice, reconciliation, truth-telling, reparation, and coming to grips with the past” (Brett et al, 2007, p. 1). Victims of violence believe that “memorialization initiatives were the second most important form of state reparation after financial compensation” (Brett et al, 2007, p.2). Memorial sites serve as forums for conversations which allow citizens to learn about their societies’ past. Memorials can come in a number of different forms. Different memorialization efforts can include museums, architectural work, other forms of art, and mass graves where ceremonies to honor victims are held. Construction of these memorials is often initiated by the government at fault as an effort to prove that they acknowledge the past and their wrongdoings.

There is no single transitional justice measure that can best help a society transition from a repressive regime to a democracy. Each measure, including criminal prosecutions, truth commissions, reparation programs, institutional reforms and memorialization efforts, is most effective when implemented together with others. If successful, these measures have the ability to bring about restorative and/or retributive justice to societies who have been subjected to mass human rights violations.

The issue of impunity

The issue of impunity looms heavily over Latin America and poses a severe threat to the success of transitional justice measures. Impunity is often defined as “freedom from accountability or punishment for state crimes or abuses of power,” and is often considered “a fundamental cornerstone of [a] state’s terrorist machinery” (McSherry and Mejia, 1999, p. 1). After military regimes were pushed out by new leaders seeking democracy and order, impunity often became institutionalized. This was commonly done through legislation such as amnesties, executive decrees and executive pardons. Efforts to counter impunity have been implemented, but impunity remains an issue in achieving complete transitional justice goals.

It was initially feared that undertaking the prosecution of war criminals within Latin America would be too difficult, and that simple forgiveness by victims would be the only way for societies to be able to move on. At the same time, powerful national and international groups were pushing to end the reign of impunity. During the period following the Cold War, “a new balance of forces was developing in the international arena, more conducive to liberal democratic and human rights and more hostile to military regimes” (McSherry and Mejia, 1999, p. 4). In the late 1980s, the United Nations began to take interest in the issue of impunity. At the same time in Latin America, tribunals were being held to raise awareness of the issue. Latin America took a huge step in November 1989 when “a Permanent People’s Tribunal on Impunity for Crimes Against Humanity in Latin America was held in Bogotá, with delegates from many countries, to present a picture of Latin America as a whole” (McSherry and Mejia, 1999, p. 6).

Despite being recognized as a major human rights issue by 1990, impunity continued to reign throughout Latin America. The existence of impunity within societies undergoing transition has a psychological impact on survivors of authoritarian regimes. Surviving victims of violence are forced to remain neighbors with the people who mercilessly killed their mothers, fathers, brothers, and sisters right in front of them. Villages are often made up of “approximately 1,000 people, most of whom are related in one way or another, these men were known and continued to be the authorities of the village[s]” (Zur, 1994, p. 15). People were exposed to mangled, tortured bodies, knowing that the people responsible were walking freely.

The impact is even worse for survivors who do not know who the perpetrators are. These survivors are left constantly questioning what has become of their loved ones. This uncertainty often prevents people from mourning the loss of their loved ones. Victims are left with “an awareness of their own powerlessness; the lack of power stems from the all-embracing might of the powerful which is stabilized in various social strata and supported by the situation of impunity in which they operate” (Zur, 1994, p. 15).

Dr. Paz Rojas, a doctor who works with the Corporation for the Promotion and Defense of Human Rights of the People, has done extensive research on this subject. He has observed in victims of such violence that there is an “appearance of psychosomatic diseases, psychotic decompensations, neuropsychological alternations, such as problems in the process of development and learning in children and psycho-organic disorders in adults” (Rojas, 1999, p. 19). He observes that a victim’s whole perception of the world around them can be significantly altered. Within his studies, “90% had no history of serious diseases and were in good health up to the time of their detention” (Rojas, 1999, p. 19). He refers to this study of impunity and crimes as ‘the study of the ailments of the soul.’

Dr. Rojas asserts that the two pillars which support the reign of impunity are a lack of justice and absence of truth, and “these two absences pervert the highest mental functions” (Rojas, 1999, p. 20). This lack of truth and justice, two predominant values in human beings, shifts morality greatly, affecting how people think and interact with others. In many of his patients, communication is nearly impossible. Many victims were no longer able to enjoy any economic, social, or cultural rights. Many victims expressed “that they did not any longer feel like a whole person with rights” (Rojas, 1999, p. 27).

Impunity in Latin America

Just as Latin America has led the way with implementing transitional justice measures, it has also allowed impunity to reign. Following Argentina’s ‘Dirty War,’ a presidential pardon and multiple amnesty laws provided impunity to members of the armed forces who were responsible for human rights violations. It became clear that impunity would be present in Argentina when the ‘Full Stop’ law was passed by former President Alfonsin in 1986. The law worked to halt all trials of members of the armed forces. In 1987 he passed the ‘Due Obedience’ law which “created the irrebuttable presumption of ‘due obedience’ for certain ranks of the security personnel below senior command rank who committed such acts … from 1976-1983’” (Crawford, 1990, p. 18).

It was not until 2005 that Argentina’s Supreme Court overturned the “two amnesty laws [which] had blocked the prosecutions of crimes committed under the country’s military dictatorship” (Human Rights Watch, 2005). Earlier, in 2003, Argentina’s Congress passed a law which annulled both the ‘Full Stop’ law as well as the ‘Due Obedience’ law. While these advances were incredibly significant to the advancement of justice in Argentina, there are still instances where war criminals are not being tried for their crimes. So, while impunity is no longer the ‘norm,’ it is still prevalent.

Guatemala is another Latin American country where impunity prevails. Following the end of the country’s 36-year conflict, impunity prevented the delivery of justice. In the early 2000s, the government of Guatemala sought assistance in establishing the International Commission Against Impunity in Guatemala (CICIG). The aim of the Commission is to “investigate illegal security groups and clandestine security organizations in Guatemala—criminal groups believed to have infiltrated state institutions, fostering impunity and undermining democratic gains in Guatemala since the end of the country’s armed conflict in the 1990s.” In early January of 2019, the government made a decision to end CICIG, deeply threatening the possibility of justice in the country.

Chile, ravaged by armed conflict for almost 20 years, had also had an amnesty law put into action during Pinochet’s rule. The 1978 law “prevented courts from prosecuting military officials involved in the torture and killings of thousands of Chileans during the first five years of Pinochet’s dictatorship” (ICTJ, 2014). Judges in Chile have not been following the law since 1998, but it still exists as codified law and is therefore still valid. Chile has made progress and as of 2013, “courts have convicted around 260 people from the Pinochet era for human rights violations, 60 of whom are currently serving sentences” (ICTJ, 2014). Despite not being used, the law has been debated greatly in parliament and still exists.

Colombia still faces ongoing human rights abuses and subsequent widespread impunity. It has been reported by Human Rights Watch monitors “that virtually 100% of all crimes involving human rights violations go unpunished” in Colombia (Giraldo, 1999, p. 31). There has been a significant increase in international pressure for this to change. In Colombia’s peace deal with FARC, there are sentences for crimes against humanity which “range between five and eight years and prison time can be excluded if the accused person fully cooperates” in investigations (Betancur-Restrepo and Grasten, 2019). Attempts to bring cases in front of the ICC have taken place, but the Court has no jurisdiction over war crimes committed by FARC before November 2009, which is when the most severe abuses occurred. Until changes are made to the peace deal, impunity will continue to protect perpetrators of brutal human rights abuses in Colombia.

Argentina is a country with a deep and unique transitional justice history. Between 1930 and 1983, Argentina experienced short periods of weak democracy and six coups d’état and periods of military rule. In 1976, Argentina was undergoing what became known as the “Dirty War,” carried out by their military dictatorship, which resulted in more than 30,000 deaths.

The 1976 coup was unique compared to earlier coups. It was led by General Jorge Videla, with the assistance of Leopoldo Galtieri, and served to overthrow the government led by Isabel Perón. The military put together “The Act of National Reorganization,” also known as the “Proseco.” This document laid out “a series of clearly defined political, social and economic objectives and strategies to be pursued by the regime,” including the “restoration of ‘proper moral values,’ national security, economic efficiency, and ‘authentic representative democracy’” (Pion-Berlin, 2004, p. 57).

Videla aimed to defend Argentina against leftist groups of any kind. Anyone whose values and ideas undermined his government was seen as a threat to Argentina. Journalists, scholars, intellectuals, union leaders, and certain politicians, all fell in this category. During the war, those who opposed the government were kidnapped and brought to detention centers where they were subject to gross human rights violations including rape, torture, beatings, and murder. These centers operated in secrecy, mainly as torture centers.

There are a number of documented forms of torture that occurred in these centers. ‘Softening up’ were sessions which generally included beatings in attempts to push those in question to cooperate. The use of electric shocks applied to various parts of the body including the temples, gums, teeth, ears, genitals, and breasts, became known as ‘the grill.’ ‘Wet submarino’ was the act of submerging the victim’s head in water until they were on the brink of drowning, while ‘dry submarino’ was the act of placing a bag over the victim’s head until they were on the brink of suffocation. Burying victims so that only their head was showing and then refusing them food or water was another common practice on the desaparecidos, a common term used to refer to those who disappeared.

The 2008 documentary Our Disappeared (Nuestros Desaparecidos), directed by Juan Mandelbaum, reflects the impact on three generations of Argentinians. The film follows Mandelbaum, who was born and raised in Argentina, as he explores his country’s dark and troubled past. The film reveals stories of passionate young adults fighting for change who are kidnapped and brutally murdered, leaving behind parents and children desperate for answers and justice.

In 1983, Argentina’s military regime collapsed when Raúl Alfonsín won the 1983 presidential election with more than 5o-percent of the vote. Alfonsin, the cofounder of the Permanent Assembly for Human Rights, brought hope to Argentina. Prior to entering politics, Alfonsin worked as a human rights attorney and “took a courageous stand by criticizing the junta that ruled Argentina from 1976 to 1983” (Kraul, 2019). Alfonsin took office during a time when Argentina was plagued with copious debts and no democratic institutions.

During Alfonsin’s first week in office, he created Argentina’s first truth commission. The Commission, called the National Commission on the Disappeared ( Comisión Nacional Sobre la Desaparición de Personas) lasted nine months, from December 16, 1983 to September 20, 1984. The mandate of the Commission “was to investigate the disappearances of people between 1976 and 1983 and uncover the facts involved in those cases, including the locations of the bodies” (United States Institute of Peace, 1983). The Commission was made up of thirteen commissioners, ten appointed by President Alfonsin and three elected by Argentina’s legislative Chamber of Deputies (United States Institute of Peace, 1983). The Commission took over 7,000 statements, with 1,500 statements coming directly from survivors.

The Commission issued a few conclusions regarding the events under investigation. First, the Commission reported “8,960 disappearances during the 1976-1983 military rule.” Secondly, the Commission concluded that “disappearances, torture, secret detention, and the disposal of bodies in unknown sites were systematic practices.” The Commission also found that “all the disappeared people were killed, and the lack of information provided about these people was the intentional strategy by the government to prevent cohesiveness among survivors.” Lastly, the Commission concluded that “the repressive practices of the military were planned and ordered by the highest levels of military command,” and “military documentation that could have proven responsibility within the chain-of-command” was ordered to be destroyed (United States Institute of Peace, 1983). The Commission offered multiple recommendations on how Argentina should proceed to address such grave human rights abuses, such as establishing reparations programs for families of disappeared persons, prosecutions and follow-up investigations concerning missing persons, and implementing human rights education programs and judicial reforms.

Argentina also undertook some prosecutions. In December 1983, just three days after Alfonsin’s inauguration, he ordered Argentina’s highest military court to “try the members of the first three juntas for crimes against human rights such as illegal deprivation of liberty, torture, and homicide” (Speck, 1987, p. 500). In early October 1984, a civilian court referred to as the Cámara took jurisdiction over the case and the trial began. The prosecution presented their evidence in open hearings on April 22, in which they presented the “most representative 700 cases” (Speck, 1987, p. 502). Defendant arguments centered around the idea that “the state of internal war in which the country found itself necessitated and justified a suspension of all constitutional guarantees” (Speck, 1987, p. 503). Other defendants argued that they were simply following orders.

The court chose not to issue guilt collectively, but rather on an individual basis. The opinion of the court was given on December 9, 1985. Videla and Massera were each sentenced to life in prison; lower ranking officers including “Agosti, Viola, and Lambruschini were sentenced to prison for four and a half, seventeen, and eight years, respectively” (Speck, 1987, p. 503). The written opinion of the court was thousands of pages and carefully highlighted facts from each of the 700 cases presented by the prosecution.

Trials continue to be held for former military officials in Argentina. In August 2016, “an Argentine federal court [convicted 38] former military officials for their roles in kidnapping, torturing, and killing several hungry victims during a period of military dictatorship four decades ago” (Gilbert, 2016). Of the 38 defendants convicted, 28 were sentenced to life imprisonment, while the rest were sentenced to anywhere between two and a half to 21 years. The trials involved “716 victims and testimony from hundreds of witnesses over nearly four years” (Gilbert, 2016). In 2017, another 29 people were given life sentences “in a trial involving some 800 cases of kidnapping, torture and murder during the 1976-1983 dictatorship” (Stauffer, 2017). Argentina’s Attorney General’s Office reported that as of 2017, 2,971 people had been charged, 818 convicted, and 99 acquitted of crimes committed during the 1976-1983 period.

Following the military rule, Argentina also went through a few different reforms. The National Commission for the Right to Identity was created in 1992. This committee aimed to uncover identities of children who had been disappeared during the ‘Dirty War,’ and included “the Association of Grandmothers of the Plaza de Mayo (Abuelas) and their attorneys, [and] state prosecutors” (Brett, 2001). The committee has been able to uncover the identities of 71 children. Two years later, in 1994, “Argentina reformed its constitution to enhance democracy and to raise international treaties ratified by the Congress to the status of constitutional law” (United States Institute of Peace, 1983). These constitutional reforms work to ensure full enjoyment of human rights in Argentina.

Following the conclusion of the truth commission, it was recommended that reparations be issued. In order to be permitted to receive reparations, “victims had to prove that they had been detained without trial between 1976 and 1979” (United States Institute of Peace, 1983). This was very difficult, as the military had not cooperated in providing documentation to prove this requirement. $3 billion USD was made available in 2004 to serve as reparations to victims who were unlawfully detained in Argentina.

Argentina is one example of a Latin American country that has worked extensively to implement transitional justice mechanisms. Immediately following his election, Alfonsin worked tirelessly to advance democracy in Argentina. Their efforts have not gone unrewarded. As of 2017, Human Rights Watch reported that “125 people who were illegally taken from their parents as children during the 1976-1983 dictatorship had been located” and reunited with surviving family members. Despite the extensive amount of cases, Argentine officials have worked to uncover the horrors of the last Junta and bring closure to families of victims and society as a whole.

Between 1960 and 1996, Guatemala was ravaged by a civil war between leftist rebel groups, predominantly Ladino peasants and Maya indigenous people, and the government. The war stemmed from the desire to “alleviate the extreme poverty, political exclusion and inequality between rich and poor” (Ball et al, 1999, p. 19). This 36-year war has become known as one of the most brutal conflicts in Latin America’s history, one in which “more than 200,000 people were killed—most of them indigenous, more than half a million were driven from their homes, and many more were raped and tortured” (Bracken, 2016).

The conflict officially began on November 13, 1960, “when discontented army officers, many of them trained in the United States, attempted a coup d’état against the corrupt and unpopular government of General Miguel Ydígoras Fuentes” (Ball et al, 1999, p. 13). Between 1960 and 1968, violence within Guatemala rapidly increased. In the early 1960s, police repression and political protest had become common, but by 1966, “the military was involved in a widespread attack on an armed guerilla movement and its civilian supporters” (Ball et al, 1999, p. 14).

The army began to bomb villages occupied largely by Ladino populations, where guerrilla operations had been carried out. Thousands of civilians were brutally murdered and disappeared between 1966 and 1968. During this period, it is estimated that anywhere between “2,800 and 8,000 Guatemalans were killed” (Ball et al, 1999, p. 16). In 1970, Colonel Carlos Arana Osorio was elected president and almost immediately declared a state of siege, suspending all constitutional guarantees through February 1972.

In September 1972, Arana’s government captured top leaders within Guatemala’s communist party, tortured them, and threw their bodies into the Pacific Ocean. Throughout Arana’s rule, death squad killings remained routine. By 1975, the number of killings and disappearances had reached a low, but by February 1976, the number began to rise again as Guatemala experienced rapid economic expansion. This triggered an “intensifying campaign of selective killing of labor activists and other militants.” Amnesty International reported that in August 1977, 61 murders “appeared to be the work of paramilitary death squads” (Ball et al, 1999, p. 21).

In 1978, General Romeo Lucas García was named President. Upon assuming office, he chose to raise the prices of many common goods and services, intensifying the conflict. Anyone who opposed the government during this time was put on a death list published by ESA, the Secret Anticommunist Army. Many on the list were brutally murdered, some by machine guns in public places. García’s government had a clear message: “it would silence anyone who dared speak against it and do so with complete impunity” (Ball et al, 1999, p. 21).

The 1980s became known as the most brutal period in Guatemala. On January 31, 1980, protestors occupied the Spanish Embassy in an attempt to reveal to the world the brutality of the Guatemalan government. Rather than attempting to negotiate with protestors, the police sent the embassy up in flames. Guatemalan police “refused to unblock the door or let firemen control the blaze,” and subsequently thirty-nine people were burned alive (Ball et al, 1999, p. 23). Following this event, state violence continued to worsen. It is recorded that in 1982 alone, nearly 18,000 murders carried out by state officials had occurred. By 1983, Guatemala had become nearly completely militarized.

It was not until late 1989 that human rights concerns were raised. Nonetheless, large scale human rights abuses continued to take place. However, the military no longer committed the vast majority of murders and disappearances, rather, “army loyalists in the civil patrols acted against neighbors who challenged the army’s hegemony or the local patrol’s authority” (Ball et al, 1999, p. 32). In 1994, the United Nations stepped in to demilitarize the country and ensure compliance with human rights standards. A final peace agreement was signed in 1996.

The Guatemalan Commission for Historical Clarification took place between 1997 and 1999. The decision to establish it was laid out in the Oslo Agreement of June 23, 1994. The mandate of the two-year commission was to “clarify human rights violations related to the thirty-six year internal conflict from 1960 to the United Nation’s brokered peace agreement of 1996, and to foster tolerance and preserve memory of the victims” (United States Institute of Peace, 1997). The Commission conducted a total of 7,200 interviews over the course of two years.

The makeup of the Commission was unique, having only three commissioners, one of them a foreigner. Christian Tomuschat, a German law professor, was the foreign commissioner of the Commission for Historical Clarification and served as the chair of the Commission. The use of a foreigner as a commissioner was new, yet desirable because a foreigner could not be suspected of pursuing political objectives, therefore, “a mixed composition seem[ed] to constitute a well-balanced model” (Tomuschat, 2001, p. 238). Otilian Lux de Coti and Edgar Alfredo Balsells Tojo were the two other commissioners appointed by Tomuschat. The final report of the Commission was entitled Guatemala: Memory of Silence and was issued on February 25, 1999. The report was initially released in Spanish to representatives of the Guatemalan government, the Guatemalan National Revolutionary Unity, and the U.N. Secretary General (United States Institute of Peace, 1997). An English version of the report can be found on the American Association for the Advancement of Science website.

The Commission came to a number of different conclusions. First, the Commission concluded that “repressive practices were perpetrated by institutions within the state, in particular the judiciary, and were not simply a response of the armed forces,” and that “’agents of the state committed acts of genocide against groups of Mayan people’” (United States Institute of Peace, 1997). The Commission concluded that over 200,000 people were killed, 83-percent of the victims were Mayan and 17-percent were Ladino (United States Institute of Peace, 1997). 93-percent of the violations documented were perpetrated by paramilitary groups and state forces, and 3-percent were the result of insurgent actions. Lastly, the Commission found that the rate of killings and human rights abuses peaked between 1978 and 1982 (United States Institute of Peace, 1997).

The Commission concluded with three recommendations for the government: reparations mainly in the form of memorialization, the return of land to Mayans, and financial assistance. Another recommendation given was for structural reforms to the judiciary and military, and for Guatemala to further attempt to strengthen the democratic process. This Commission did not call for any prosecution of perpetrators within its report. Criminal prosecutions have not been easy in Guatemala. In 2010, some trials of former military officials began, but the strength of Guatemala’s military and the general weakness of legal institutions have led to the extensive use of amnesties, thus impunity.

In 1996, the Guatemalan Congress passed the Law of National Reconciliation, invalidating a 1986 amnesty law that guaranteed immunity from prosecution for all crimes committed between 1983 and 1986 (Burt, 2018, p. 33). The 1986 law did not, however, provide amnesty for crimes such as disappearances, genocide, torture, and other international crimes against humanity. Despite this, impunity was still all too prevalent.

Where domestic courts failed, the Inter-American Court of Human Rights stepped up. In 2004, the Court “found the Guatemalan State responsible for the massacre and ordered it to investigate, prosecute and punish the perpetrators” (Burt, 2018, p. 34). Spanish courts also became involved in the prosecutions of Guatemalan war criminals. In 1999, charges were brought against eight government officials from Guatemala. The case remained inactive for nearly six years “when the Spanish Constitutional Court ruled in favor of Spanish jurisdiction in the Guatemalan genocide case” (Burt, 2018, p. 34). A verdict was not reached, but pressure on Guatemala intensified.

The International Commission Against Impunity (CICIG) was created in 2007. CICIG established new procedures to select the attorney general and senior judges, and helped create a specialized court system, the High Risk Tribunals, to adjudicate complex criminal cases (Burt, 2018, p. 34). All of these advancements led to the strengthening of Guatemala’s judiciary.

One of Guatemala’s most well-known war criminal cases was that of Rios Montt. The trial began on March 19, 2013. Less than two months later, Montt was found guilty of crimes against humanity and genocide. This trial “marked the first time a former head of state was prosecuted in domestic court for the crime of genocide” (Burt, 2018, p. 37). Nearly 100 victims and families testified in this case. The legitimacy of the trial was questioned, and the president of Guatemala at the time, Otto Perez Molina, denied the occurrence of a genocide in Guatemala. A little over a week after the verdict in Montt’s trial was handed down, “the Constitutional Court, arguing procedural violations, partially suspended the genocide proceedings, effectively undoing the verdict” (Burt, 2018, p. 38).

It was not until 2016 that prosecution efforts in Guatemala began again. Less than a week into the year, “the Attorney General’s Office arrested 18 senior military officers on charges of criminal responsibility for dozens of cases of enforced disappearances and massacres committed between 1981 and 1988” (Burt, 2018, p. 39). One significant case since then has been the Sepur Zarco sexual violence case. On February 26, 2016, “two former senior military officers [were found] guilty of crimes against humanity in a case involving murder, sexual violence, sexual slavery and other atrocities committed at the Sepur Zarco army base” (Burt, 2018, p. 40). They were sentenced to 120 to 240 years imprisonment.

As of February 2019, Guatemala is at a crossroads. Congress is swaying towards amending the National Reconciliation Law of 1996. Doing so would “terminate all ongoing proceedings against grave crimes committed during the country’s civil war, free all military officials and guerrilla leaders already convicted for these grave crimes, and bar all future investigations into such crimes” (Burt and Estrada, 2019). The passing of such legislation deeply threatens Guatemalan society, especially victims of the war, and those who have come forward to testify against those prosecuted. Backing out of CICIG also poses a severe threat to justice.

Guatemala has been slow to adopt many institutional reforms. In 2016 the National Dialogue towards Justice Reform in Guatemala was developed. The goal was to launch “reforms of the Constitution and ordinary laws, in order to guarantee judicial independence, access to justice and institutional strengthening” (Human Rights Office of the High Commissioner , 2016). On October 5, 2016, the reform package, which included 25 constitutional amendments, was presented to the Guatemalan Congress (Beltran, 2016).

As a country, Guatemala has done little to help victims, therefore many memorialization efforts are carried out by victims’ groups themselves. Across the country, communities “have constructed local memorial spaces to commemorate the victims of massacres and enforced disappearance” (Burt, 2018, p. 40). Certain communities have also developed oral history traditions. Communities came together to create the Monument for Peace and Tolerance, located near the site of the Panzos massacre of 1978. Other memorials include the Kaji Tulam Memory Museum, which “depicts the internal armed conflict from the perspective of victims;” and the exhibit Why Are We the Way We Are?, which “aims to encourage visitors to challenge their own assumptions and stereotypes as a way of dismantling the racism and discrimination that has characterized Guatemala since Independence” (Burt, 2018, p. 41).

Together, these initiatives have successfully helped communities in a number of ways. Each one has “served to document and to denounce the atrocities committed, to dignify and honor the victims, to recover the histories of heroism and resistance of the survivors, and to promote community organization and the rebuilding of social fabric” (Burt, 2018, p. 41). These memorials effectively educate younger generations on the atrocities committed and often spark initiatives for justice and reparations.

Following the conclusion of the 36-year conflict, thousands were left tortured, abused, and murdered. The country carried out multiple transitional justice measures. Their Commission for Historical Clarification revealed the atrocities carried out during the war to the world; initiatives have been made for institutional reforms; criminal prosecutions have shut down impunity to a certain extent; and memorialization has helped to educate younger generations and has ensured that victims are not forgotten. Despite these efforts, the fate of Guatemala remains uncertain as the military continues to have a strong hold on the government.

The 1973 Chilean coup d’état marked the beginning of a brutal conflict. Dr. Salvador Allende took office as President in 1970. His administration was met with opposition, largely from middle-class and business-class sectors. Soon, those who opposed Allende’s administration determined that “the government of Allende was incompatible with the survival of freedom and private enterprise in Chile, and that the only way to avoid their extinction was to overthrow the government” (Loveman, 1986, p. 1). Following the 1973 coup by the Chilean military, supported by the United States, Chile became a military dictatorship under Augusto Pinochet. During his rule, it is estimated that more than 3,000 Chileans were executed or “disappeared,” while up to a 100,000 were tortured (The Center for Justice & Accountability).

Pinochet’s goal “was to transform Chilean political institutions and to restructure both Chile’s society and its economy” (Loveman, 1986, p. 2). The standard of living in Chile for the middle and lower classes rapidly declined. Nearly every aspect of the new military government was met with opposition. The first groups to oppose the military regime were resistance groups formed in workplaces, prisons, factories, and homes. As the military continued to carry out human rights abuses, opposition grew stronger. The new government had no tolerance for opposition and dealt with those who expressed opposition through disappearances, murder, imprisonment, and exile.

Only days following the coup, armed forces set out to detain any suspected leftists. They began at the State Technical University where hundreds were detained at Chile Stadium. Here, they were exposed to brutal treatment. Detainees were starved and many were interrogated and tortured. Others were killed, their bodies disposed of in secret. In 1973, anyone suspected of opposing the military regime was targeted by a military death squad called the ‘Caravan of Death.’ The Caravan used military bases throughout the country, torturing and executing at least 75 political prisoners (The Center for Justice & Accountability).

In 1981, a new constitution was introduced by the military government. This new constitution prohibited any group which “advocated doctrines which served to undermine the family, which promoted violence, or which adopted a conception of society, state or juridical order of a totalitarian character or which was based on class conflict” (Loveman, 1986, p. 2). The new constitution placed an emphasis on national security, a responsibility placed on the shoulders of the armed forces, and introduced an eight-year, renewable presidential term.

Eleven parties came together in 1984 to sign an accord which demanded presidential elections be held before 1989. On December 14, 1989, elections were held for the first time in Chile since the 1970s. Pinochet was defeated and became a senator, a role prescribed to him in his 1981 constitution. In 1998, British authorities detained Pinochet following Spain’s request for his extradition in connection with the torture of Spanish citizens in Chile during his rule. After his capture, documents were released which revealed information regarding some of the most brutal human rights atrocities during Pinochet’s regime. This included details of Operation Colombo and the disappearance of more than 100 Chilean leftists in 1975, and Operation Condor and the coordinated efforts of several South American military governments to eliminate opponents in the 1970s and 1980s (Encyclopedia Britannica).

In 2000, Pinochet was released by the British after it was determined that he was physically unfit to stand trial. He returned to Chile, expecting to be protected by immunity. However, the Appellate Court stripped Pinochet of his immunity by a vote of thirteen to nine (Pion-Berlin, 1985, p. 484). After being ordered to once again stand trial in 59 cases of kidnapping, murder, and torture, “the Chilean Supreme Court ruled him mentally and physically unable to answer them” (Read, 2018). Pinochet passed away in 2006, without facing any charges.

The Chilean government finds itself now racing to prosecute Pinochet-era war criminals, as many are beginning to pass away. Since the end of the conflict, “there have been 1,149 convictions handed down for dictatorship-era human rights crimes” (Slattery, 2015). However, prosecutions are difficult to conduct because of the 1978 amnesty law passed by Pinochet during his presidency, still in force.

In 2004, Chile’s armed forces assumed blame for the grave human rights abuses committed during the Pinochet era. This move by the armed forces was seen as a ploy to ensure immunity for all violators. Chile’s Supreme Court President Sergio Munoz has tirelessly worked to reverse widespread impunity in Chile since he has taken office in 2014. In 2017, Chile’s High Court “sentenced 33 former intelligence agents for the disappearance of five political activists in 1987” (BBC, 2017). Prosecutions of Pinochet era human rights abusers remain underway.

Following the Pinochet dictatorship, Patricio Aylwin assumed office as the president of Chile. Almost immediately after assuming office, Aylwin established a truth commission, which operated from May 1990 to February 1991. The mandate of the Rettig Commission was to “document human rights abuses resulting in death or disappearance during the years of military rule, from September 11, 1973 to March 11, 1990” (United States Institute of Peace, 1990). In total, the Commission was able to document 3,428 cases of grave human rights abuses in Chile during the Pinochet regime. The Commission was made up of eight commissioners selected by Aylwin. Raul Rettig chaired the Rettig Commission.

The Commission handed down a few conclusions and recommendations in its report, released in February 1991. The Commission concluded that “most forced disappearances committed by the government took place between 1974 and August 1977 as planned and coordinated strategy of the government” (United States Institute of Peace, 1990). It also concluded that the National Intelligence Directorate played a very significant role when it came to political repression during the rule of the military government. The Commission recommended reparation programs for victims who testified before the Commission, noting that these reparations “should include symbolic measures as well as significant legal, financial, medical and administrative assistance” (United States Institute of Peace, 1990). The Commission further recommended that Chile adopt human rights legislation and create an ombudsman’s office.

In 2003, Chile’s president Ricardo Lagos created a second truth commission to address Pinochet-era human rights abuses. The Rettig Commission was limited in the sense that it was only mandated to investigate crimes which resulted in death or disappearance. The Valech Commission operated from September 2003 through June 1, 2005. It was mandated “to document abuses of civil rights or politically motivated torture that took place between September 11, 1973 and March 10, 1990 by agents of the state and by people in their service” (United States Institute of Peace, 2003).

The Commission handed down a 1,200-page report which included testimony from 27,255 victims. The report concluded that “torture and detention were used as a tool of political control by State authorities and perpetuated by decrees and laws that protected repressive behavior,” and that torture carried out by paramilitary police and armed forces became a generalized practice (United States Institute of Peace, 2003). This Commission also recommended reparation programs and the provision of “individualized material reparations, pensions, educational and health benefits, as well as collective symbolic measures” for victims (United States Institute of Peace, 2003).

Following the recommendation of the Rettig Commission, a reparation program referred to as the National Corporation for Reparation and Reconciliation was created. This allows for victims who are named in the report to receive financial support, “totaling approximately 16 million USD each year” (United States Institute of Peace, 1990). Following the Valech Commission, 28,459 victims are being provided “lifelong governmental compensation … and free education, housing and health care” (United States Institute of Peace, 2003).

In 2007, Chile’s president Michelle Bachelet announced the creation of the Museum of Memory and Human Rights, in Santiago. The mission of the museum, as laid out on their website, is to “allow dignity for victims and their families, stimulate reflection and debate and to promote respect and tolerance in order that these events never happen again” (Museodelmemoria.cl). The museum features artifacts from Pinochet’s dictatorship.

Chile was slow to implement institutional reforms. This was because the institutions in need of reform—the military, judiciary, and legislature—remained loyal to Pinochet even after his downfall. Change was initiated with the abolishment of a national holiday which honored the September 11, 1973 coup. Soon after, changes to the Pinochet-era constitution were made. This long reform process “resulted in amendments that allow the president to fire the armed forces’ commanders” (United States Institute of Peace, 1990). Additionally, the National Security Council was no longer able to hold any power aside from advisory powers.

Chile is one example of a country which unfortunately still faces wide-spread impunity, making the advancement of human rights rather difficult. Despite this, the country has made significant progress in their attempts to bring justice to victims of Pinochet-era violence. Multiple truth commissions have brought to light the atrocities committed by armed forces; reparation programs have provided victims with housing, education, and money; and reforms have helped the country shift away from its military past. Chile is a country which still has a long way to go, but has made significant progress in their efforts to restore respect for human rights.

Colombia has been plagued by an armed conflict that arguably began in the 1940s and continues to this day. Originally, Colombia’s civil war, a period known as La Violencia, lasted from 1948 through 1957. The two groups involved were the “two economic, social and political elites organized under the Liberal and Conservative parties” (Garcia-Godos and Lid, 2010, p. 490). A peace agreement was reached by the two parties in 1957 for power to be shared among the groups for the next 16 years. The new bipartisan regime became known as the National Front. Shortly after, in 1964, “the war [was] re-ignited [by an anti-regime insurgency] and continues to this day” (Garcia-Godos and Lid, 2010, p. 490).

The main groups involved in the conflict are communist guerrilla groups including the Revolutionary Armed Forces of Colombia (FARC), Army of National Liberation (ELN), and the Populist Liberation Army (EPL). A year after the start of the conflict, the government enabled the creation of new irregular forces through Decree 3398, basically legalizing the formation of private self-defense or paramilitary groups (Garcia-Godos and Lid, 2010, p. 492). In 1989, this was reversed. Shortly after, violence carried out by FARC and ELN began to skyrocket.

The two groups have long histories of violence and human rights abuses. As of 2007, the armed conflict has resulted in an “estimated total of 674,000 homicides,” including 51,000 civilians, 6,000 forcibly disappeared, 51,500 kidnapped, and at least 11,000 tortured (Garcia-Godos and Lid, 2010, pp. 490-491). In 2002, FARC was responsible for kidnapping Ingrid Betancourt, a presidential candidate. Betancourt was held “along with three U.S. military contractors until 2008, when Colombian forces rescued them and twelve other hostages” (Felter and Renwick, 2017). In 2001, FARC was responsible for the assassination of a culture minister. In 2002, the group was found responsible for hijacking a commercial flight.

These violent groups, as well as other right-wing paramilitary groups, quickly became involved in Colombia’s growing drug trade. It is estimated that in the early 2000s, “Colombia supplied as much as 90 percent of the world’s cocaine, and the production, taxation, and trafficking of illicit narcotic provided the FARC with much of its revenue” (Felter and Renwick, 2017). This involvement soon led to violent conflicts over territory. ELN did not become involved in drug trafficking until 2015.

After five years of negotiation, Colombia’s government and FARC came together to sign a peace agreement. The two came together in Havana, Cuba, with the intention to “end the armed conflict and build stable and lasting peace” (Institute for Integrated Peace, 2018). Peace talks with ELN have been ongoing since February 2017, with very little success. Despite any agreements, Colombia is still in an incredibly fragile state. Armed conflict remains ongoing in many areas once controlled by FARC, “as armed groups are attempting to take control over strategic areas, natural resources and important drug routes” (Jenssen, 2018). Violence continues to grow throughout the country and the government is doing very little to stop it, leading “to a 36-percent increase in internally displaced people in the first half of 2017,” a figure which continues to grow (Jenssen, 2018). There have been nearly 90 murders of human rights activists and local leaders since 2017, and many Colombians admit to feeling less safe following the peace talks than they did before.

The case of Colombia is unique because it is one where transitional justice measures have begun to take shape despite the ongoing conflict. In 2005, Colombia passed the Justice and Peace Law, also commonly referred to as Law 975. The law established a framework for peace while also respecting the rights of victims to truth, justice, and reparations, and established Colombia’s truth commission (The Center for Justice & Accountability, Colombia). It also introduced the “requirement of retributive justice in terms of imprisonment and recognizing the role of the victims and their rights in the peace process” (Garcia-Godos and Lid, 2010). The legislation also requires the government to preserve the memory of the armed conflict and its victims.

Law 975 provided a basic outline of institutions and their roles in the peace process. Colombia’s Truth and Reconciliation Commission is such an institution. The law also required the establishment of the National Unit for Justice and Peace (UNFJP), with a mandate to “ensure that the demobilized paramilitaries fulfil their obligations with regard to confessions, and to carry out criminal investigations, in addition to having the main responsibility for collecting and systematizing reports of abuses” (Garcia-Gordos and Lid, 2010, p. 499). Other important institutions laid out in Law 975 include the High Court of Judicial Districts, and the Public Defense Office, which oversees the rights of the accused.

In 2016, the Colombian government and FARC came together in an attempt to end the war. A June ceasefire and agreement, which arranged disarmament, was signed by the two parties, and three months later, FARC and the government came together to finally put an end to a conflict that had lasted more than 50 years. Colombians, however, were not happy with the peace agreement. They found the provisions of the agreement too lenient on FARC, and voted against the peace deal in a subsequent national referendum on the peace deal. A new deal was proposed, to include “reparations for victims which will come from FARC’s assets and money” (Lopez and Capelouto, 2016). Other aspects included that “FARC rebels [would] be expected to provide exhaustive information about any drug trafficking they may have been involved in,” and a 10-year time limit was set for the implementation of transitional justice measures (BBC, 2016). The new peace deal, which regulates the Special Jurisdiction for Peace tribunal, was approved in late November 2016.

In June 2018, Colombia elected Ivan Duque as president. Duque ran his campaign for presidency primarily on his opposition to the 2016 peace deal. He stated that “people who have not turned in assets or weapons will be brought to justice,” and “people who have committed crimes like kidnapping and narco-trafficking will no longer…be granted amnesty” (Wymouth, 2018). In Duque’s opinion, the peace deal was too lenient with FARC commanders accused of atrocities (Murphy and Vargas, 2019). As news of the President’s plans to amend the peace deal surfaced, former rebels expressed the dangers of doing so. Many think that this move will further aggravate armed conflict within Colombia. As of April 9, 2019, the lower house rejected Duque’s proposed changes to the peace deal.

At the center of Colombia’s current transitional justice efforts lies the Special Jurisdiction for Peace (JEP). The JEP was first laid out within the peace deal of 2016 and was described as the most contentious issue of the peace process (Harper and Sonneland, 2018). The JEP was officially instituted in March 2018, and contains different branches that investigate and try perpetrators of violence and human rights abuses during the war. The JEP is organized in a rather complex matter. Cases start in the smaller chambers, including the truth chamber, amnesty chamber, and sentencing chamber. In the first chamber, applicants are provided a platform to come forward about their actions, “and depending on the severity of their crime, they may be referred to receive amnesty or limited sanctions” (Ballesteros, 2017). While this is happening, the Investigatory Unit researches where rebels had committed crimes and are not confessing, and works to bring those people to trial. If they are found guilty, they are given “the opportunity to tell the truth in the smaller chambers before their case heads to the Peace Tribunal” (Ballesteros, 2017). Once a case reaches the final step, the Peace Tribunal, all people involved are given the opportunity to appeal.

Colombia’s first truth commission, also a part of the peace deal, officially convened on May 8, 2018. The Commission “will operate for three years during which it must submit reports every six months” (BBC, 2018). The purpose of the Commission is to clarify what took place during the armed conflict and provide reparations to victims of the brutality. The evidence collected by the Commission cannot be used in the criminal proceedings in hopes that people would “provide more truthful testimonies of their crimes if they knew their testimony could not be used against them in court” (Ballesteros, 2017).

Another significant transitional justice effort implemented in Colombia with the help of the International Commission on Missing Persons is the Search Unit for Missing Persons. The Search Unit “was formally established through a Constitutional Amendment adopted by the Colombian Congress on 13 March 2017” (International Commission on Missing Persons, 2017). The Unit is responsible for finding “between 45,000 and 90,000 victims” (Gill, 2018). As of January 23, 2018, the Search Unit had not made any progress due to lack of funds and possibly a lack of political will.

The case of Colombia is certainly unique. Colombia is a country still ravaged by violence despite numerous peace deals being drafted and passed. A number of different transitional justice measures have been implemented in an attempt to bring justice to victims of the more than 50-year war, including the Search Unit for Missing Persons and The Commission for the Clarification of Truth, Coexistence, and Non-Repetition. The fate of these measures is uncertain as Ivan Duque, the current President of Colombia, is working against the 2016 peace deal which laid out all of these measures.

Conclusion: a comparative study of transitional justice in Latin America

Each country that undergoes a transition from a repressive regime to a democracy will handle their transition differently. While the measures they implement may be similar in nature, they will remain unique in certain ways. The acceptance of these measures by the public will also vary by country. Additionally, the success of these measures is bound to differ throughout every country. These differences are prevalent when comparing the transitions of Argentina, Guatemala, Colombia, and Chile.

In terms of truth commissions, Argentina and Guatemala each utilized one truth commission, while Chile had two. As of now, Colombia is implementing one truth commission, but it is unclear whether or not they will hold any more in the future. The makeup of these commissions also varies by country. The number of commissioners varies depending on the size of the commission. Additionally, commissions differ on the nationality of their commissioners. Some commissions will have mostly natives of the country serve as commissioners, while others will have a majority of foreigners working in the commission.

Truth commissions also vary in the time frames they cover. It would be very difficult for commissions to cover the entirety of conflict in some cases, so they often focus on specific years. However, the truth commissions held in Argentina, Guatemala, and Chile covered the span of each country’s conflict in its entirety. Argentina’s commission covered the years 1976 to 1983, which was the time frame of the country’s ‘dirty war.’ Guatemala’s commission covered the years 1962 to 1996, covering the entirety of the country’s 36-year war. Both of Chile’s commissions covered the years 1973 to 1990, which spanned the rule of Pinochet. Colombia’s truth commission also aims to cover the entirety of its internal armed conflict.

Subject matter covered in truth commissions also differs among countries. Argentina’s truth commission was mandated to solely investigate the disappearances of people and the details of these disappearances. Guatemala’s truth commission had a broader goal of clarifying all violations of human rights, fostering tolerance and preserving the memory of the victims (United States Institute of Peace, 1997). Chile’s Rettig Commission was only able to investigate abuses that resulted in either disappearance or death. Chile’s Valech Commission documented “abuses of civil rights or politically motivated torture … by agents of the state and by people in their service” (United States Institute of Peace, 2003). Colombia’s ongoing commission seeks to clarify abuses and events that occurred during the country’s internal conflict.

Despite these differences among truth commissions, all of the commissions mentioned above helped to successfully contribute to a future of democracy and sustainable peace. The Argentina commission provided a platform for 7,000 stories to be heard and for the provision of reparation programs for victims. Guatemala’s commission provided a platform for 7,200 stories to be told while helping kick start memorialization efforts and land restitution programs for natives. Chile’s Rettig Commission documented 3,428 victim testimonies, and the Valech Commission documented testimonies given by 27,255 victims. Both of these commissions helped to create different reparation programs within Chile. Colombia’s ongoing commission is working to clarify different abuses which have occurred over the last 50 years.

Prosecution of war criminals and human rights abusers varies greatly among these countries. In some countries it has been harder than in others due to impunity. Argentina is still prosecuting war criminals to this day. As of 2017, over 2,000 people have been charged with crimes that took place during the war. Argentina successfully overturned amnesty laws, which allowed them to continue prosecutions. Guatemala, on the other hand, has struggled with criminal prosecutions. The country recently backed out of CICIG, which worked to eradicate impunity and is also potentially going to amend the National Reconciliation Law of 1996, which would end all ongoing trials and free all persons currently in jail for crimes committed during the war. Chile has ignored Pinochet-era impunity laws and has worked tirelessly to prosecute war criminals. It is difficult to tell whether or not Colombia will successfully prosecute war criminals, as the promise of impunity is a central idea in their peace deal with FARC.

Reparations have appeared in these countries in a number of different shapes. In 2004, Argentina was granted $3 billion USD for the victims. This was much easier said than done, however, as victims were required to provide documentation that they were detained without trial. In Guatemala, reparations came in the form of memorialization. Different communities within Guatemala have constructed different traditions to commemorate the disappeared. Chile had a combination of both of these. After the conclusion of their truth commissions, nearly 30,000 victims were provided with governmental compensation for the rest of their lives. The government also erected the Museum of Memory and Human Rights to preserve the memory of those lost during conflict. Colombia has yet to provide reparation programs to victims.

Each country has had different experiences when it comes to reforms. Argentina was able to reform its constitution, promote democracy and human rights throughout the country. Guatemala has been very slow to reform their institutions despite efforts to amend the constitution in 2016. Chile was also slow to reform their institutions because the institutions which required reform remained loyal to Pinochet. Small reforms such as allowing the president to fire armed forces’ commanders and bar the National Security Council from holding power aside from advisory powers, were implemented. Colombia has yet to implement institutional reforms.

Transitional justice is used around the world. It comes in a number of different forms and is a key player within international law. There are a number of different transitional justice measures including truth commissions, reparation programs, criminal prosecutions, and memorialization efforts. These measures have been implemented extensively throughout Latin America and have helped countries such as Argentina, Guatemala, Chile, and Colombia to make the transition from repressive regimes to democracy.

Since the implementation of transitional justice measures, Argentina has made great strides toward democracy, free from domestic armed conflict. In 2015, Argentina made history by electing Mauricio Macri as president. This is Argentina’s first president who has been democratically elected since 1916 and is neither a Peronist, nor a radical. Guatemala has also made great steps towards strengthening their democracy through transitional justice. Despite high waves of impunity, in the past ten years Guatemala has “seen a former dictator found guilty of genocide; high-ranking military officials sentenced to lengthy prison terms for their roles in mass atrocities; and indigenous women winning cases against members of the military who sexually enslaved them and robbed them of their land” (Mattingly, 2019). Chile continues to prosecute war criminals and works to ensure that the memory of victims of Pinochet’s era are not forgotten. The country continues to hold democratic elections, which had been incredibly rare in the past. Colombia is still involved in a deeply rooted internal conflict, but their present initiatives in transitional justice look promising.

Truth commissions in these countries have provided platforms for thousands of victims to come forward and tell their stories. This allows victims a sense of closure by allowing their story to be told and subsequently shared with the world. Criminal prosecutions put an end to impunity and act as a deterrent for future crimes. They provide a potential for victims to feel safer, knowing their abusers are in jail or facing punishment. Reparation programs, including memorialization, allow for victims and their families to come to terms with the past and to make sure their history is never to be forgotten. Memorials also allow for continuous conversation about the past for future generations. Reforms provide institutions a second chance to advance the human rights protections and democracy. When implemented together, all of these transitional justice measures serve as a channel for the advancement of democracy, development, and sustainable peace within Argentina, Guatemala, Chile, and Colombia.

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Read, P. (2018, Sept. 10). World Politics Explainer: Pinochet’s Chile. The Conversation. Retrieved from https://theconversation.com/world-politics-explainer-pinochets-chile-100659  

Rojas, P.B. (1999). Impunity and the Inner History of Life.  Social Justice , 26(4), 13–30.

Slattery, G. (2015, Nov. 1). Chile Doubles Down on Prosecutions for Pinochet-Era Crimes. Reuters . Retrived from https://www.reuters.com/article/us-chile-dictatorship-trials/chile-doubles-down-on-prosecutions-for-pinochet-era-crimes-idUSKCN0SQ2D120151101

Speck, P.K. (1987). The Trial of the Argentine Junta: Responsibilities and Realities.  The University of Miami Inter-American Law Review , 18(3), 491–534.

Stauffer, C. (2017, Nov. 29). Argentine Court Sentences 29 to Life for Dictatorship Crimes. Reuters. Retrieved from https://www.reuters.com/article/us-argentina-rights/argentine-court-sentences-29-to-life-for-dictatorship-crimes-idUSKBN1DU021

Teitel, R.G. (2003). Transitional Justice Genealogy. Harvard Human Rights Journal, 16, 69-94.

The Center for Justice & Accountability . Chile: The Pinochet Years. Retrieved from https://cja.org/where-we-work/chile/

Tomuschat, C. (2001). Clarification Commission in Guatemala.  Human Rights Quarterly , 23(2), 233–258.

United States Institute of Peace. (1983). Truth Commission: Argentina . Retrieved from https://www.usip.org/publications/1983/12/truth-commission-argentina

United States Institute of Peace. (1990). Truth Commission: Chile 90. Retrieved from https://www.usip.org/publications/1990/05/truth-commission-chile-90

United States Institute of Peace. (1997). Truth Commission: Guatemala. Retrieved from https://www.usip.org/publications/1997/02/truth-commission-guatemala

United States Institute of Peace. (2003). Commission of Inquiry: Chile 03. Retrieved from https://www.usip.org/publications/2003/09/commission-inquiry-chile-03

U.S. Department of State(a). (2016). Criminal Prosecutions. Retrieved from https://www.state.gov/j/gcj/transitional/257574.htm

U.S. Department of State(b). (2016). Lustration and Vetting. Retrieved from https://www.state.gov/j/gcj/transitional/257569.htm

U.S. Department of State(c). (2016). Reparations. Retrieved from https://www.state.gov/j/gcj/transitional/257571.htm

U.S. Department of State(d). (2016). Truth Commissions. Retrieved from https://www.state.gov/j/gcj/transitional/257567.htm

War Crime. Wex Legal Dictionary. Retrieved from https://www.law.cornell.edu/wex/war_crime

Weymouth, L. (2018, Sept. 27). Colombia’s President on a Wobbly Peace With the FARC. The Washington Post. Retrieved from https://www.washingtonpost.com/outlook/colombias-president-on-a-wobbly-peace-with-the-farc/2018/09/27/d501197e-c1f9-11e8-a1f0-a4051b6ad114_story.html?utm_term=.2f9c692c8bd0

Zur, J. (1994). The Psychological Impact of Impunity.  Anthropology Today , 10(3), 12–17.

[*] Brianna Weissman graduated Ramapo College in May 2020 and is an incoming first year student at Elisabeth Haub School of Law at Pace University.

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Article Contents

Introduction, theories of change in transitional justice, impact and evaluation of transitional justice interventions, a new approach to theories of change in transitional justice, conclusions.

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Transitional Justice and Theories of Change: Towards evaluation as understanding

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Paul Gready, Simon Robins, Transitional Justice and Theories of Change: Towards evaluation as understanding, International Journal of Transitional Justice , Volume 14, Issue 2, July 2020, Pages 280–299, https://doi.org/10.1093/ijtj/ijaa008

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This article has two goals. First, to make explicit the theories of change currently operative within transitional justice and, second, to critically engage with both these theories, and dominant theories in international development. As such, it seeks to replace a focus on results, attribution, and linearity with a privileging of process, contribution and complexity. Developing theories of change for transitional justice is challenging, as it is characterised by diverse interventions, complex and contested contexts, and the need to balance principles and pragmatism. Normative, linear and mechanism-based claims remain dominant, while the evidence base for transitional justice is still weak. This article looks at insights from adjacent fields, some of the challenges facing the development of theories of change within transitional justice, and evidence from impact studies and evaluations. In a final section we propose an alternative, drawing on complexity theory and actor-oriented approaches, which suggest an important set of terms – systems, interaction, contingency, context, encounter, emergence, incrementalism – to inform what we term evaluation as understanding.

There is a fundamental and existential problem with transitional justice: it does not really know what it is. In part due to a lack of what development practitioners term the ‘theory of change’, it is very difficult to delineate what and who transitional justice is for. Both a serious cause and consequence has been the expansion of the concept to incorporate a huge range of objectives and claims, from formal prosecutions to broader development goals, without sufficient critical reflection. Transitional justice is an over-burdened and under-conceptualised idea. 1

A theory of change can be understood as setting out ‘underlying assumptions about the relationships between desired outcomes and the way proposed interventions are expected to bring them about ’. 2 In the field of transitional justice, few non-government organisations (NGOs), governments, inter-governmental organisations, or donors operate with an explicit theory of change. To the extent that there are implicit theories of change, they are often not clearly articulated, unsubstantiated by evidence, and mutually contradictory. As such, work on developing theories of change is needed to clarify the parameters of transitional justice, to ground expectations of achieving particular outcomes, and to achieve greater coherence within transitional justice interventions and between transitional justice and adjacent sectors. This article has two goals. First, to make explicit the theories of change currently operative within transitional justice. Second, to critically engage with both these theories, and dominant theories in international development, and explore the potential for theories of change to drive a practice that is evidence based, contextualised, process-driven and inclusive of concerned communities. The article champions evaluation as understanding , advocating a relativist approach, subjectively rooted in the change desired by stakeholders. 3 We seek to move beyond the conventional positivist (or more properly, post-positivist)–constructivist dichotomy in evaluation by seeking approaches that are relevant where programmes to be evaluated exhibit nonlinearity and other structural aspects of complexity.

Transitional justice presents considerable challenges to the development of theories of change. Addressing the past in transitions from conflict or repressive rule encompasses different mechanisms or approaches (criminal prosecutions, truth-seeking, reparations, reform of law and institutions); highly contested and often fragile contexts (‘transitions’); a rapid expansion of interventions, goals and expectations; and a relatively new field at the early stage of theory-building. 4 Scholarship has highlighted the tensions within transitional justice, for example between the goal of providing justice to victims and ‘causal beliefs’ about facilitating a transition to democracy, 5 and between ‘irreconcilable goals’ such as maintaining order and facilitating transformation. 6 Broad concepts such as justice, truth, reconciliation, peace and democracy, although contested, need some degree of clarity and focus, and the relationship between concepts also requires clearer theorisation. Given these challenges it is not surprising that there have been calls to pause and take stock. Mendeloff’s plea to ‘curb the enthusiasm’ in relation to claims made about truth-seeking and -telling is illustrative:

Claims about the peace-promoting effects of formal truth-telling mechanisms rest far more on faith than on sound logic or empirical evidence. The literature has done a poor job of specifying the logic of truth-telling arguments, defining and clarifying key concepts, operationalizing key variables, indicating the conditions under which proposed relationships hold, providing compelling empirical evidence to support core assumptions, and testing claims systematically against competing explanations. Assertions are frequently presented as empirical fact when they are merely untested hypotheses. In short, truth-telling advocates claim more about the power of truth-telling than logic or evidence dictates. 7

Despite these challenges, transitional justice advocates often make sweeping claims that the core components of their trade deliver significant change, e.g. that truth-telling contributes to reconciliation, that prosecutions act as a deterrent, that institutional reform can aid non-repetition of violations, and so on. These constitute a version of what Eyben et al. call an ‘archetypes framework’, 8 where change is implicitly thought to come about through some taken for granted conventional wisdom. Notwithstanding a significant growth in evaluation and theory-based work in the last decade, many theories of change in transitional justice remain normative and human rights-based, rather than empirically rooted, resulting in a tendency to present interventions as a self-evident good, rather than contested practices requiring justification and an evidence base.

Given the growing emphasis on evaluation in transitional justice it seems clear that theories of change will also become more prevalent in the future. This article does not blindly advocate for the wider use of theories of change. Rather, the vision set out here is of an approach to theories of change that goes against the grain of the mainstream, both of current practice in transitional justice and of dominant approaches to theories of change in international development. In this article, we seek to use theories of change as a way of conceptualising transitional justice as a process, from conception to evaluation, with the aim of using such theories as a tool to drive processes that are bottom-up and accountable to concerned constituencies. The next section defines the concept of theory of change in more depth, identifies relevant theories of change that can be transposed from fields such as international development, and expands on the challenges in building theories of change for transitional justice. We then discuss impact studies and evaluations of transitional justice to identify the dominant current pathways to understanding change processes. In a final section we propose an alternative means of operationalising theories of change, drawing on complexity theory and actor-oriented approaches, which suggest an important set of terms – systems, interaction, contingency, context, encounter, emergence, incrementalism – to inform what we term evaluation as understanding.

This section clarifies the problem that the article seeks to address, through the lens of definitions of theories of change, mainstream theories from adjacent fields, and challenges facing the clarification of theories of change within transitional justice.

Defining Theories of Change

At its most simple, a theory of change can be understood as a testable hypothesis, in social science terms, or a justification for an action. As suggested by Aragón and Macedo’s definition above, theories of change provide ‘a way to describe the set of assumptions that explain both the mini-steps that lead to a long-term goal and the connections between… activities and the outcomes of an intervention’. 9 Developing a theory of change can be perceived as producing an output that describes how activities lead to outcomes, highlighting assumptions, justifications and pathways which ‘unpack the black box of causality’ 10 , or as a process , with an emphasis on conceptual thinking and ongoing reflection or cycles of learning designed to understand the relationship between activities and outcomes.

Among the lessons from the use of theories of change in international development are that they can have both positive and negative impacts. The breadth of understandings of theories of change in development range from a highly technical planning tool – an extension of the assumptions made in a log frame, for example – to a politicized approach to understanding how particular actions impact on power relations in a specific context. Much of the enthusiasm for theories of change has come from what might be called the ‘results agenda’: a desire to demonstrate that donor funds in international development are delivering change and ‘value for money’. Whilst such approaches might seek to use the language of participation, they are often driven in a top-down way and prioritize donor agendas. However, theories of change can also be envisaged as a process-based, problem-solving, reflective and participatory approach in which a change model is developed and continuously revisited, inclusive of a range of stakeholder perspectives. 11 Theories of change can also facilitate a move beyond a focus on projects and programmes to a reflective and flexible understanding of how change takes place in a given context and community, and what role organisations and interventions could play in supporting such change. As Valters reports: ‘This definition helps tackle a recurrent problem with Theories of Change – that organisations imply that change in a society revolves around them and their programme, rather than around a range of interrelated contextual factors, of which their programme is a part’. 12

In its final section this article champions a process-based approach to theories of change, evaluation as understanding, in which outputs and outcomes are not predetermined but rather characterised by contingency, emergence, and incrementalism. What follows below is a discussion of more conventional, largely output-based approaches to theories of change.

Borrowing Theories of Change

The table below sets out six core theories of change which derive from fields such as international development, but which can be applied to transitional justice. The theories in the table are often pursued in combination.

Theories of change transposed from development to transitional justice 13

Individually and in combination these theories of change provide useful insights, as well as significant limitations, in understanding how change is perceived and how interventions might drive change. What follows builds on the theories in this table to highlight a set of challenges confronting the development of theories of change in transitional justice.

Challenges to Building Theories of Change for Transitional Justice

The discussion below identifies four core challenges facing the development of theories of change within transitional justice. These challenges are: links to very broad, macro-level goals; the relationship between levels of impact; the lack of theorising about transitional justice mechanisms and the changes they seek to effect, as well as on the connections between mechanisms; and prioritisation and sequencing within complex, ‘holistic’ interventions.

First, the goals of transitional justice at a macro or state level are often framed to encompass outcomes such as reconciliation, peace-building, and strengthening the rule of law and democracy. 18 The pathways linking transitional justice to wider processes of social change remain largely implicit – whilst truth is presumed to be a tool for peace-building or strengthening democracy, for example, the mechanisms to deliver these changes are under-developed. The literature seeking to link transitional justice to strengthening the rule of law and democracy is illustrative of this first challenge. Cross-national quantitative studies present contradictory findings about the links between transitional justice and democracy, and provide little by way of clear policy guidance. 19 Qualitative research and inquiries using mixed methods have led the way in moving beyond correlation to causation. This research has begun to disaggregate the components of democracy that transitional justice is most likely to have an impact upon (the rule of law, security forces, and participation), and identify potential pathways to impact (promotion of legal and policy reforms, empowerment of marginalised actors, and (de)legitimisation of individuals, groups, institutions and ideologies); 20 call for assessment of the effects of mechanisms within and between fields / sectors, and for more complex rather than linear causal dynamics, including the possibility of negative effects; 21 and emphasise context (national, regional, international) and timing (the passage of time, sequencing of interventions, national and world time) as vital to the evaluation of transitional justice processes. 22 While literatures linking transitional justice to macro-level change processes are becoming more sophisticated, they remain largely uncritical of liberal and Western definitional criteria e.g. of democracy, hampered by the challenge of mapping causal relationships and integrating transitional justice interventions into broader processes of change, and beset by the fundamental question of whether effective transitional justice is the cause or effect of broader goals such as strengthened democracy.

Second, transitional justice demands change at multiple levels (individual, community, national, etc.), but is imprecise in defining which are important to any particular process or mechanism, or how change at different levels is connected. 23 Many transitional justice processes comprise national institutional mechanisms, such as truth commissions and trials, which unfold largely in capital cities, while having elements – such as public hearings or testimony collection – that take place in local spaces. These can be complemented by other mechanisms, such as symbolic or material reparations, that have highly visible local manifestations. Multiple levels of activity are often characterised by profound differences, and tensions, in the institutional spaces used, the actors involved, and the moral repertoires which carry legitimacy. Wilson talks of ‘relational discontinuities’ 24 in South Africa between the Truth and Reconciliation Commission (TRC) and community-level social processes. These discontinuities existed between the TRC and local justice structures, elites and the masses, as well as normatively between reconciliation and human rights on the one hand and revenge as the dominant local response framework on the other. But research also illustrates that outreach and forms of translation can form connections and more positive forms of diversity, if not uniformity, across different levels. Jeffrey’s work on the Court Support Network of the War Crimes Chamber of the Court of Bosnia and Herzegovina, analyses ‘the spaces through which judicial processes operate and the spatial imaginaries they bring into being’. 25 He argues that in this setting outreach ‘brought new spaces of justice into being through education programmes, transnational connections and innovative forms of political participation’. 26 The spaces of justice as a result were plural - legal and non-legal, produced by the state and non-state actors, supporting the Court but also establishing their own practices of justice, and conceptualizing justice in different ways (less a legal process of retribution and more a ‘shared experience’ focusing on restorative notions of deliberation and reconciliation). 27 An effective theory of change for transitional justice must be able to link different levels in societies in ways that extend beyond a vague hope that change will ‘trickle down’ from national, institutional interventions, and that nuances current theorising on transnational advocacy, boomerangs and cascades (see Table 1 ). Theorising is needed on how diverse actors mobilise resources, alliances and discourses across levels or spaces to achieve desired outcomes.

Third, there is also a lack of theorising about transitional justice mechanisms, the changes they seek to effect, and the connections between mechanisms. For example, Cronin-Furman dismantles what might be termed an ‘archetype’ theory of change in transitional justice: the assumption that international criminal trials produce a general deterrence to other potential offenders. 28 Drawing on two bodies of social science theory, on criminal deterrence and the commission of mass atrocities, she argues that the work of the International Criminal Court (ICC) is not calibrated to produce a deterrent effect because of the lack of certainty and severity of sanction and the selection of offenders (commanders who order offences are less likely to be deterred than those who permit or fail to punish offences).

Further, scholarship on the relationships or interactions between transitional justice mechanisms is scarce and contradictory. 29 Bisset argues that while the ‘theoretical compatibility and complementarity of these mechanisms’ has been widely affirmed, 30 there has been ‘a failure to assess whether their actual modes of operation are compatible’. 31 A ‘practical discord’ between the investigations of truth commissions and trials remains, for example in the areas of access to information, the exchange and provision of evidence, and the role of witnesses. 32 Tensions exist between truth commissions and trials when they operate simultaneously, but also when they take place sequentially. In relation to Chile, Accatino and Collins have argued for the existence of various ‘truth orders’, and for truth as ‘accumulation’ rather than a one-off construction. 33 Chile has experienced three truth commissions – the Rettig Commission on death and disappearances; the Valech Commission on torture and political imprisonment; and the New Deal with Indigenous Peoples 34 – and, since 2000, around 1,000 former security service personnel have been placed under investigation or on trial for gross human rights abuses committed during the 1973–1990 military dictatorship. In this context, the truth commissions questioned previous judicial judgements, and over time their findings have in turn been questioned by further judicial proceedings. The questioning of administrative, and socially accepted, truths may be seen as necessary given judicial standards of proof and due process guarantees, but the fact that the truth is potentially permanently ‘transitory’ may be profoundly unsettling for victims and their families. 35 It is therefore clear that transitional justice theories of change need to build on, but go beyond, theories identifying policy windows or the role of coalitions and collectives ( Table 1 ), to encompass the huge complexity implied by the use of diverse mechanisms, with multiple functions, interacting over long periods of time.

Fourth, more holistic interventions and proposals, acknowledging that transitional justice must work at different levels, through diverse mechanisms and sectors, often resemble complex and ambitious programmes without a strategy. ‘Do everything’ is not a helpful instruction for policy makers or practitioners. Dimensions of influence and policy window theories (see Table 1 ) indicate the need to manage complexity and for patience and preparedness, so that political openings are exploited when they arise. Literature on prioritisation and sequencing within holistic interventions is emerging. Accatino and Collins suggest unsteady and non-linear progress towards truth and justice, where outcomes become a contested accumulation. 36 With a broader focus on Latin America, Dancy and Wiebelhaus-Brahm argue that neither timing nor sequencing of transitional justice interventions significantly alter the potential for democratic consolidation, with trials coming closest to being a necessary condition for successful consolidation. 37 Scholarship on the importance of seeing transitional justice as a process, rather than a short-term enterprise, highlights ‘the possibility of a continuous return’ as the past returns in new and unexpected guises 38 and the need for a ‘deeper, broader, longer transitional justice’. 39 Insights into prioritisation and sequencing, and their role within theories of change, are likely to be highly contextual and as a result to resist easy generalisation.

This section outlines some problems that need to be resolved in developing theories of change for transitional justice. It illustrates both the positivistic, output focussed nature of much theory of change literature and practice, and the challenges associated with a lack of theorising within transitional justice. These challenges include: the need to operationalise concepts that are often vague in definition and contested in practice; analysing the relationship between intermediate goals, such as truth-telling and prosecution, and ultimate aims, such as democratic strengthening and peace; articulating how different levels of impact (individual, community, national) interact; understanding the impact and interaction of purportedly complementary mechanisms within transitional justice, and between transitional justice and related fields; and managing the prioritisation and sequencing of interventions in complex and evolving processes of change. In practice, such questions are in part answered by impact studies and evaluations, and the next section turns to this growing field as a route to understanding processes of change.

This section looks at both quantitative and qualitative studies of the impacts of transitional justice, including evaluations. The heart of the dilemma here is that such studies have produced mixed, even contradictory, findings, used various methodologies, and at present there is neither a coherent evidence base nor clear policy guidance to support transitional justice interventions. 40

Quantitative studies of transitional justice are the most explicit about outcomes because they must create indicators onto which to map goals, including macro-level ambitions, and are thus less ambiguous about goals than many qualitative studies. Single context studies have included goals such as reconciliation, 41 and reducing retributive desires, 42 among their perceived aims. Large N studies, typically working across many tens of contexts, have made a choice of dependent variables, notably referencing human rights and democracy, 43 peace, 44 and repression of violations. 45 While these studies advance understanding of change processes, they have also been subject to significant critique. First, a narrow, Western view of key variables such as ‘human rights’ and ‘democracy’ is typically taken, with rights understood as an absence of gross personal integrity violations, 46 and democracy as political rights and/or breadth of political participation. 47 Second, they remain vague about pathways to impact, or causal processes that link mechanism and outcomes. Where such pathways are identified they are typically linear and fail to link specific transitional justice interventions with the wider socio-political context of transitions, since a large N approach necessarily generalises across multiple contexts. As such, results are unlikely to provide models that coincide with the complexity in any one given transitional context. Third, even where correlation is demonstrated, causality remains elusive. Given the limits of purely quantitative analysis, it is likely that deeper causal insights into transitional change processes will require qualitative or mixed methods, and a new generation of such studies is indeed emerging. 48

At the heart of evaluation dilemmas is the question of who decides what the goals of the process are, which links to where power lies in the transitional process. Most national transitional justice processes still make no effort to measure their impact and as a result evaluation has been dominated either by academic studies seeking to measure impacts or by donors and operational agencies wanting to measure the impact of their own programmes to support transitional justice processes. The growth in volume and sophistication of evaluations is beginning to nuance both the methods used and the findings identified. 49

There are four main approaches to measuring the quality of transitional justice processes, each of which is informed by different methodologies. First, the most common approach is an impact assessment of particular mechanisms, typically truth commissions and trials, in terms of their impact on individuals. In many cases only the people who have directly interacted with a particular mechanism are studied, either those who testified and gave statements, those who were involved in the Commission, or NGO professionals, thereby overlooking wider societal impacts. 50 Second, process-based evaluative approaches measure the quality of the implementation of a process e.g. are methods of investigation appropriate to finding the truth, or is the intervention reaching its intended beneficiaries? 51 Third, outcome evaluation seeks to measure a process or mechanism against particular criteria, or in terms of desired goals. This has been attempted using multi-context quantitative approaches (as discussed above) against goals such as peace and democracy. 52 Other studies use mixed or qualitative methods to assess outcomes. 53 A final approach, formative assessment , 54 has sought to avoid such ‘comparison to the ideal’ 55 by targeting representative samples of victims, survivors, or the general population, to evaluate the quality of transitional justice against local perceptions of priorities and needs. 56

A limitation of all the above approaches is that, in the absence of a theory of change, they offer little insight into the causal drivers of the impact that is observed. Regression analyses with quantitative data can infer causality, but many such studies do not develop consistent theories of change that are supported by evidence. 57 Qualitative studies can capture the voices and opinions of stakeholders in ways that allow inference of casual mechanisms, but impact measurement is not always an explicit goal of such studies. The challenges facing evaluation overlap with many of those highlighted earlier in the article. For example, there is almost no longitudinal work which can track changes as transitional justice mechanisms unfold and demonstrate sustainable or evolving impacts. In very few cases have factors beyond the mechanisms of transitional justice been explored, to acknowledge that impacts can also result from the circumstances of transition – such as a clear military victory – the social and political environment, or from interventions originating in other sectors.

The challenges of evaluative approaches to transitional justice are demonstrated by studies assessing the impact of the South African TRC process, which reached highly divergent conclusions. For example, authors in Chapman and van der Merwe’s edited volume used a range of qualitative and quantitative methodologies to evaluate the TRC process and notably its impact on victims and survivors. 58 In addition to condemning elements of the TRC’s implementation, they conclude that it promised far more than it managed to deliver. The disillusionment of victims and survivors is further confirmed by Backer’s longitudinal survey of 153 victims, which shows that approval of the amnesty process fell from 57.5% in 2002–3 to 20.4% in 2008. 59 Gibson, in contrast, draws on public opinion surveys, exploring the TRC’s impact on all South Africans, to test the hypothesis that truth leads to reconciliation. 60 As such, the study prioritises reconciliation at the level of the general public as the phenomenon of interest, defined as interracial reconciliation, political tolerance, support for the principles of human rights and the legitimacy of political institutions. Gibson concludes that the TRC does appear to have moderated black and white views on apartheid and resistance to apartheid, bringing racial groups closer together, but it remains unclear – in the absence of any theory of change – to what extent this can be considered a result of the TRC rather than ongoing political changes. These studies demonstrate a basic but fundamental point: the result of an evaluation exercise will at least partly be determined by the question asked and how the evaluation is framed.

While new insights are emerging from impact and evaluation studies, these strands of inquiry provide no clear, or clearly theorised, direction of travel. They also currently provide insufficient evidence to support transitional justice interventions, or the expectations that should accompany such interventions. In the final section of this article an alternative route to developing clear and coherent theories of change is proposed.

This article argues that using theories of change in transitional justice has significant potential to both understand and optimise impacts, but that realising this goal depends on adopting such theories in a critical and nuanced manner. The risk for transitional justice is that theories of change become another highly technical route fuelling a results agenda, ‘the attribution obsession’, 61 prescriptive responses and elite control. The vision set out here is of an approach to theories of change that goes against the grain, both of many such theories in fields such as international development and of current practice in transitional justice. Two elements are identified as central to this approach. The first is the issue of complexity and the use of theory to acknowledge and understand that transitional justice mechanisms are only one of many processes that shape transitional societies as complex systems. As a result, change is likely to be non-linear and multi-causal. The second is a focus on actor-oriented approaches which seeks to acknowledge that institutional or systemic change is only as relevant as its impacts on the everyday lives and needs of affected populations.

Complexity Theory and Transitional Justice

As has been seen in the development field complexity science offers the potential to generate greater insights into work on change processes, 62 and a means for providing an underlying theoretical framework for transitional justice as a tool for change. A crucial part of complexity theory is the idea of a system, characterised by interconnected and interdependent elements, and in which change arises from a multitude of relationships rather than from linear cause-effect chains. 63 Complexity also incorporates elements such as feedback , where the outcome of an activity can amplify or diminish change in a system, and e mergence where the behaviour of a system emerges – often unpredictably – from the interaction of its constituent parts, such that the whole is different to the sum of the parts, and change is non-linear. 64 The emergent character of complex change is both driven and compounded by the influence of many different actors, with different perspectives and relationships, impacting upon social dynamics. This framework revisits the idea of holistic interventions, and challenges such as the prioritisation and sequencing of interventions. It acknowledges that a transitional justice mechanism will always be only one of many elements impacting on social actors in a transitional context. Perhaps the greatest test for transitional justice theory and practice offered by complexity theory is that the best course of action will be highly context-dependent, challenging the very idea of a single practice relevant in all contexts and spaces. While there is relatively little discussion of complexity in transitional justice literature, 65 and a danger that indeterminacy in fact drives a retreat to technocratic solutions and toolkits, 66 three case studies drawn from secondary sources inform our call to embrace complexity: the ecological model of social reconstruction; incremental peacebuilding; and the restitutional assemblage.

The first example is the ecological model of social reconstruction developed by Fletcher and Weinstein and Stover and Weinstein, 67 drawing on research in Rwanda and the former Yugoslavia. The authors question the role of individual criminal trials in furthering social repair and reconstruction in the context of communal violence. They argue that people use war crimes trials in such settings to reaffirm the collective innocence and the victimization of their particular group. By way of an alternative they propose that communal violence needs a communal response, which highlights collective guilt and responsibility for the violence. Such an approach would acknowledge and start to address the profound social breakdown experienced. An ‘ecological’ model of social reconstruction understands the community and society as a social system. All aspects (social, economic, political) of this system must be understood, as well as the fact that a change in one place produces change elsewhere within the system. Concretely, the authors propose a layered intervention that addresses individuals, families, communities and the state to ensure social reconstruction. Interventions include: state-level interventions; criminal trials (national or international); commissions of historical record (truth commissions); individual and/or family psychosocial support; externally-driven community interventions; and community-based responses, among others. 68 While the specific term is not used, this approach relates to complexity theory in a variety of ways. No single intervention seeks to address all of society’s needs but each intervention is understood to have consequences on society as a social system, and synergies should be sought between levels and interventions to amplify positive effects. In specific contexts, the model illuminates the relationship between justice and social processes within communities affected by conflict.

A second case study draws on the work of Anna Lowenhaupt Tsing on friction as an ethnography of global connection. 69 Millar and colleagues edited a journal special issue in 2013 applying the concept of friction to peacebuilding. They argue that friction highlights the emergent and unexpected nature of local-global encounters, the importance of contingency and context, and focuses on processes of encounter rather than the outcomes of such processes. 70 Millar uses the term ‘compound frictions’ to describe the way in which ‘a diversity of international peacebuilding interventions – each embodying different and even competing universal norms and paradigms – interact with one another in the minds and imaginations of local audiences to produce unpredictable expectations and experiences’. 71 Friction is ‘nested’ with complexity theory, echoing the distinction made by Rogers between complicated and complex interventions (see footnote 59), in arguing that complex systems cannot be understood simply by analysing their component parts, since interaction between these component parts produces outcomes that are unpredictable, generative and non-linear. Millar applies this conceptual framework to Sierra Leone, and the work of the Special Court for Sierra Leone, the Truth and Reconciliation Commission, DDR (disarmament, demobilisation and reintegration) and international NGOs, to facilitate insights into the locally experienced confusions and re-interpretations caused by compound frictions between multiple interventions carrying rival universalising ideas, when the interventions are imported into a particular setting. The implication of this approach is unsettling as it suggests that outcomes are unplannable: ‘we cannot, in short, know what will happen, but we can know what might happen and from that set of possible future states we can choose a compass point by which to steer’. 72 Millar advocates ‘incremental peacebuilding’ 73 consisting of small calibrated actions, constant attention to shifting contexts, and slow steering towards desired outcomes.

Finally, Reading’s work on the Parramatta Girls Home, 74 a site of institutionalized female and indigenous containment in Australia, and the concept of ‘restitutional assemblage’ provides similar insights. She argues that restitution is more usefully conceived not as a ‘one-off, discrete or bounded process towards a particular goal’, but rather as ‘an assemblage of practices that involve unfinished processes and interventions that operate across a number of domains’. 75 The assemblage of practices spans the material and economic, but also non-material realities (symbolic, affective/emotional, spiritual and cultural), and takes place across space/levels and time. Outcomes – inquiries, apologies, compensation campaigns, academic and cultural coverage, and more – are not finite but emergent, with new connections and priorities arising through processes of change. The restitutional assemblage suggests that everything does not and indeed should not be done simultaneously, but rather actions take place strategically over different time and space thresholds, recognizing that it is this ongoing process which is critical in terms of creating a sense of justice that is truly transformative.

While Fletcher, Stover and Weinstein help us to understand that transitional justice is itself complex and operates in countries and communities which are also complex social and political systems, Millar and Reading advance this analysis by combining complexity, or an ‘holistic’ approach, with guidance about prioritization and sequencing (see Table 1 ). Providing links to the actor-oriented approach, discussed below, each of the approaches set out above must be informed by the needs and views of the local population.

Towards Actor-oriented Evaluation Approaches in Transitional Justice

Theories of change driven by concerned stakeholders – for example victims or affected populations – can create evaluation methodologies that are actor-oriented and holistic (see Table 1 ), in contrast to the programme-oriented approach of mechanistic, log-frame led evaluation. The key principles on which this approach is based are that understandings of justice and human rights emerge from everyday lives and the political struggles around them, not necessarily through alignment with national or international laws, 76 and initial goals are defined by concerned stakeholders who themselves drive the theories of change upon which evaluation is based. Such actors may also have unique insights that professionals lack. This approach differs dramatically from the way in which transitional justice is traditionally planned, challenging a purposive approach, based on fixed goals and targets, with one that is purposeful , based on agile measures of success, adaptable to changing situations (mirroring Millar’s incrementalism). This perspective embraces evaluation as understanding , rooted in the stakeholders’ values and the change they seek, 77 and responsive evaluation , 78 which implies a renegotiation of the relationships between the production of evaluative knowledge and the constituencies with which it engages. Because change is necessarily non-linear, accountability and attribution cannot be measured in a positivistic cause-effect chain, but rather the contribution of various factors to a particular change must be gauged subjectively by stakeholders. 79 Responsive evaluation lends itself to a longitudinal approach that can provide a feedback mechanism and reflexive monitoring to inform an unfolding process, thereby becoming not only a measurement tool but a potential approach to steering transitional justice. 80 Among the important elements of these approaches are an acknowledgement of multiple stakeholders, wide-ranging participation, a renegotiating of power relationships, and the importance of process and multiple, open ended goals. Examples of such responsive and constructivist evaluations in transitional justice are few. However, some work has been done, typically framed in the language of a ‘victim-centred’ approach, that echoes the idea of a transitional justice defined subjectively by concerned actors. 81 Participatory approaches and action research are methods that offer empowerment as a potential impact of evaluation.

Two evaluative approaches that engage with these concepts, outcome mapping and the Most Significant Change (MSC) method, will be introduced below, with reference to their use – and potential use – in transitional justice. An example of a method based on actor-oriented theories of change, and that is implicitly constructivist in approach, is outcome mapping. 82 This approach seeks to identify changes in attitudes, knowledge, and behaviours as perceived by the direct beneficiaries of an action. Outcomes, and an understanding of how they emerge, are harvested from the actors most affected. A fundamental principle of the approach is to acknowledge complexity and seek to measure the extent of an intervention’s contribution towards outcomes rather than attributing change exclusively to the intervention. While outcome mapping as a fully-fledged project management strategy in transitional justice remains rare, increasingly agencies are using the technique of outcome harvesting to access subjective perspectives on project impacts from concerned communities. 83 Outcome mapping has been used in transitional justice work by the International Coalition of Sites of Conscience (ICSC), a global network of initiatives using memory of violations to advance human rights and social justice. 84 A set of monitoring and evaluation questions focuses on how social actors move from memory to action and what role the Coalition plays in contributing to that process. 85 Evaluation questions address new behaviour, relationships, actions, policies or practices of individuals, groups, communities, organisations or institutions, through a qualitative engagement with the relevant social actors. This approach permits such actors – typically community members, victims, or youth – to describe the outcomes sought and to develop a theory of change in advance of a project, and to report on change during and after the memory action to allow a longitudinal measurement of impact. The ICSC experience of the use of outcome mapping is that it resonates with and reinforces participatory and community-based methodologies. The Global Initiative for Justice, Truth, and Reconciliation, of which ICSC is a part, has seen this in a context in Africa where conflict is ongoing, where it has sought to support documentation of violations with a long-term view of informing formal transitional justice mechanisms: 86 local partners who are collecting data have championed short-term projects such as local truth-telling and community dialogues which advance local peacebuilding as well as long term justice goals. Outcome mapping cannot of course ensure that different actors share the same goals of any process, and this limits the choice of engaged actors to those who share broad aims or depends upon the interactive process of discussion of such goals producing a set of priorities that is shared.

The Most Significant Change (MSC) technique is a further actor-oriented evaluation approach used for evaluating complex interventions, representing a qualitative participant-driven approach, focusing on the human impact of intervention. 87 It is often characterised as a transformative evaluation approach. In essence, MSC involves the generation of stories by various stakeholders involved in an intervention, where this could reference a NGO-implemented project, a particular transitional justice mechanism, or an entire transitional justice process. These are stories of significant changes in people’s lives caused by the intervention, the most significant of which are selected by the stakeholders and used to facilitate in-depth discussions. These discussions bring to the stakeholders’ attention the impacts of the intervention that have the most significant effects on the lives of those it targets. MSC has begun to be used by a wide range of development actors, 88 but has also been used in a number of transitional justice contexts. 89

Examples of MSC in transitional justice contexts have largely focused on local approaches, rather than national processes, since emphasis resonates with the goals of agencies which have led such interventions. For example, a conflict resolution project in the Democratic Republic of Congo was evaluated through the collection of 125 MSC stories. 90 These were analysed initially in terms of ‘domains of change’, which included ex-combatant integration, justice, community development and mobilisation, while additional analysis allowed the identification of indicators defined by members of concerned communities. This enabled the evaluation to demonstrate for example that community-based ‘peace courts’ established by the project were highly valued and considered effective in resolving conflict. Beyond this, the MSC process itself has created a route of communication between communities and local authorities, and between communities and the INGO. In a challenge to claims that a lack of rigor deters donors from supporting its use, the US Department of State’s Bureau of Democracy, Human Rights, and Labor (DRL) has used MSC in the human rights work it funds. 91 The approach permits DRL to ‘understand intended and unintended changes, both positive and negative’ and ‘question which outcomes we were valuing most and how we were determining significance’. 92 MSC enabled DRL to interrogate power relations around how ‘most significant ‘ was determined and to ensure that incremental successes, such as building acceptance or creating movements and alliances, were not neglected in the light of ‘bigger wins’ in areas such as policy reform.

What techniques such as outcome mapping and MSC facilitate is both the bottom-up development of theories of change by those most impacted by the change sought, and a direct, subjective measurement of that change. They are currently used largely by agencies seeking to evaluate their own programmes but have the potential to measure the effectiveness of transitional justice mechanisms at various levels. Such approaches face their own challenges, notably the willingness of donors and states to allow locally driven, more open ended outcomes, and downward rather than upward forms of accountability. While both approaches can be resource intensive, further experimentation and innovation has the potential to streamline methodologies and steer an incremental, responsive transitional justice.

Transitional justice faces numerous challenges when it comes to establishing theories of change, as it is characterised by diverse interventions, complex and contested contexts, and the need to balance principles and pragmatism. Normative claims, implicit or archetypal theories of change, alongside linear and mechanism-based arguments, remain dominant, while the evidence base for transitional justice is still weak. The result is invariably excessive expectations and a practice characterised by managing disappointment. This article argues that the development of theories of change could play a role in remedying this situation. This argument is made against the grain of both mainstream development theories of change, and mainstream thinking in transitional justice, in that it seeks to replace a focus on results, attribution, and linearity with a privileging of process, contribution and complexity.

This article looks at the potential to draw insights from adjacent fields, some of the challenges facing the development of theories of change within transitional justice, and evidence from impact studies and evaluations. While new insights are emerging, these strands of inquiry provide no clear, or clearly theorised, direction of travel. As such, this article argues for an approach to theories of change in transitional justice which unpacks and challenges the beliefs, assumptions and hypotheses about how change happens in transition. Drawing on complexity theory and actor-oriented approaches, it makes the case for theories of change which are evidence-based, stakeholder-led, and complexity-focussed. We are left with an important set of terms – systems, interaction, contingency, context, encounter, emergence, incrementalism – to inform what we have labelled evaluation as understanding. If expectations are co-constructed, and managed through reflective processes, the practice of transitional justice would become less fraught with conflict and disappointment, and more energised by new forms of legitimacy and accountability.

Anna Macdonald, ‘Local Understandings and Experiences of Transitional Justice: A Review of the Evidence’. (London: Justice and Security Research Programme, London School of Economics, 2013) Paper 6: 4.

Alfredo Ortiz Aragón and Alfredo Ortiz Macedo, ‘A “Systemic Theories of Change” Approach for Purposeful Capacity Development’, IDS Bulletin 41 (3) (2010), 89.

Martin Reynolds, ‘(Breaking) The Iron Triangle of Evaluation’, IDS Bulletin 46 (1) (2015), 71–86.

Colleen Duggan, ‘Editorial Note’, International Journal of Transitional Justice 4 (3) (2010), 315–28.

Paige Arthur, ‘How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional Justice’, Human Rights Quarterly 31 (2) (2009), 321–67.

Bronwyn A. Leebaw, ‘The Irreconcilable Goals of Transitional Justice’, Human Rights Quarterly 30 (1) (2008), 95–118.

David Mendeloff, ‘Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm?’ International Studies Review 6 (3) (2004), 356.

Rosalind Eyben, Thalia Kidder, Jo Rowlands and Audrey Bronstein, ‘Thinking about Change for Development Practice: A Case Study from Oxfam UK’, Development in Practice 18 (2) (2008), 202–3.

Andrea A. Anderson, ‘Theory of Change as a Tool for Strategic Planning: A Report on Early Experiences’. (New York: The Aspen Institute: Roundtable on Community Change, 2004), 2.

Craig Valters, ‘Theories of Change: Time for a Radical Approach to Learning in Development’. (London: Overseas Development Institute and the Asia Foundation, 2015), 5.

Ibid. at 4, 5.

Colleen Duggan, ‘“Show Me Your Impact”: Evaluating Transitional Justice in Contested Spaces’, Journal of Evaluation and Program Planning 35 (1) (2012), 199–205.

Brandon Stewart and Eric Wiebelhaus-Brahm, ‘The Quantitative Turn in Transitional Justice Research: What Have we Learned About Impact?’, Transitional Justice Review 1 (5) (2017), 97–133.

Valerie Arnould and Chandra Sriram, ‘Pathways of Impact: How Transitional Justice Affects Democratic Institution-Building’. TJDI Policy Paper 1, October 2014, (London: Centre on Human Rights in Conflict, University of East London, 2014).

Chandra Sriram, ‘Beyond Transitional Justice: Peace, Governance, and Rule of Law’, International Studies Review 19 (1) (2017), 53–69.

Elin Skaar, Camila Gianella Malca and Trine Eide, After Violence: Transitional Justice, Peace, and Democracy (Abingdon: Routledge, 2015), 193–96.

‘It is perfectly plausible that the same policy may have positive macro-level effects but negative micro-level effects, the potential of amnesty legislation to lead to such an outcome has been widely suggested’: Macdonald, supra n1 at 2, 59.

Richard Wilson, The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State . (Cambridge: CUP, 2001), 174.

Alex Jeffrey, ‘The Political Geographies of Transitional Justice’, Transactions of the Institute of British Geographers , New Series 36 (3) (2011), 344.

Ibid., 348.

Ibid., 355–57.

Kate Cronin-Furman, ‘Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocity, International Journal of Transitional Justice 7 (3) (2013), 434–54.

On quantitative studies, see Skaar et al., supra n 22, at 17, 21; Stewart and Wiebelhaus-Brahm, supra n 19, at 123.

It is increasingly claimed, for example, that transitional justice can support peace and justice, and truth and justice, refuting traditional perceptions of trade-offs between these goals. See Priscilla Hayner, ‘Negotiating Justice: Guidelines for Mediators’ (Geneva / New York: Centre for Humanitarian Dialogue and the International Center for Transitional Justice, 2009).

Alison Bisset, Truth Commissions and Criminal Courts . (Cambridge: Cambridge University Press, 2014), 2.

Ibid., 6. For a detailed discussion of the relationship between the Truth and Reconciliation Commission and the courts in South Africa, see Paul Gready, The Era of Transitional Justice: The Aftermath of the Truth and Reconciliation Commission in South Africa and Beyond . (Abingdon: Oxon.: Routledge, 2011), 102–6.

Daniela Accatino and Cath Collins, ‘Truth, Evidence, Truth: The Deployment of Testimony, Archives and Technical Data in Domestic Human Rights Trials’, Journal of Human Rights Practice 8 (1) (2016), 89, 91.

Reports of relevance to this discussion include: Comisión Nacional de Verdad y Reconciliación, Informe de la Comisión Nacional de Verdad y Reconciliación (Rettig), (Santiago: CNVR, 1993); and Comisión Nacional sobre Prisión Política y Tortura, Informe de la Comisión Nacional sobre Prisión Política y Tortura (Valech), (Santiago: CNPPT, 2004). There is also a 2011 iteration of the latter report. Truths produced by the first commission are available to the judiciary, while most truths produced by the second commission are not.

Accatino and Collins, supra n 33.

Geoff Dancy and Eric Wiebelhaus-Brahm, ‘Timing, Sequencing, and Transitional Justice Impact: A Qualitative Comparative Analysis in Latin America’, Human Rights Review 16 (4) (2015), 321–42.

A. James McAdams, ‘Transitional Justice: The Issue that Won’t Go Away’, International Journal of Transitional Justice 5 (2) (2011), 304–12.

Ray Nickson and John Braithwaite, ‘Deeper, Broader, Longer Transitional Justice’, European Journal of Criminology 11 (4) (2014), 445–63.

MacDonald supra n 1; Stewart and Wiebelhaus-Brahm supra n 19; Sriram supra n 21; Oskar N. T. Thoms, James Ron and Roland Paris, ‘State-level Effects of Transitional Justice: What Do We Know?’ The International Journal of Transitional Justice 4 (3) (2010), 329–54.

James L. Gibson, Overcoming Apartheid: Can Truth Reconcile a Divided Nation? (New York: Russell Sage Foundation, 2004).

Roman David and Susanne Y. P. Choi, ‘Victims on Transitional Justice: Lessons from the Reparation of Human Rights Abuses in the Czech Republic’, Human Rights Quarterly 27 (2) (2005), 392–435.

Tricia D. Olsen, Leigh A. Payne, and Andrew Reiter, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy . (Washington DC: USIP, 2010).

Dancy and Wiebelhaus-Brahm, supra n 37; Tove Grete Lie, Helga Malmin Binningsbø and Scott Gates, ‘Post-conflict Justice and Sustainable Peace’. Post Conflict Transitions Working Paper 5 / World Bank Policy Working Paper 4191. (Washington DC: World Bank, 2007).

Hunjoon Kim and Kathryn Sikkink, ‘Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries’, International 54 (4) (2010), 939–63.

As used for example in The Physical Integrity Rights Index, and the Political Terror Scale.

Most typically from datasets such as Polity IV - Monty G. Marshall and Ted Robert Gurr, ‘Polity IV Project: Political Regime Characteristics and Transitions, 1800–2013’ (Virginia: Center for Systemic Peace, 2010), http://www.systemicpeace.org/polity/polity4.htm , and Freedom House - Freedom House, Freedom in the World 2016, (Washington DC: Freedom House, 2016). https://freedomhouse.org/report/freedom-world/freedom-world-2016 .

e.g. Skaar et al., supra n 22; Sriram, supra n 21. Also see Phuong Pham, Patrick Vinck, Bridget Marchesi, Doug Johnson, Peter Dixon and Kathryn Sikkink, ‘Evaluating Transitional Justice: The Role of Multi-Level Mixed Methods Datasets and the Colombia Reparation Program for War Victims’, Transitional Justice Review 1 (4) (2016), 60–94.

Duggan, supra n 4 and n 18.

Alfred Allan, A. and Marietjie M. Allan, ‘The South African Truth and Reconciliation Commission as a Therapeutic Tool’, Behavioral Sciences and Law 18 (4) (2000), 462–463; Lia Kent, The Dynamics of Transitional Justice: International Models and Local Realities in East Timor (Abingdon, Oxon: Routledge, 2012); Cheryl de la Rey and Ingrid Owens, ‘Perceptions of Psychosocial Healing and the Truth and Reconciliation Commission in South Africa’, Peace and Conflict: Journal of Peace Psychology 4 (3) (1998), 269.

Jeremy Sarkin, ‘An Evaluation of the South African Amnesty Process’, in Audrey R. Chapman and Hugo van der Merwe (eds.) Truth and Reconciliation in South Africa: Did the TRC Deliver? (Pennsylvania: University of Pennsylvania Press, 2008). Such approaches are informed by guidelines issued by agencies such as: International Center for Transitional Justice (ICTJ) ‘Truth Seeking: Elements of Creating an Effective Truth Commission’ (New York: ICTJ, 2013), and Office of the High Commissioner for Human Rights (UN OHCHR) ‘Rule of Law Tools for Post-conflict States: Reparations Programmes’ (Geneva: OHCHR, 2008).

e.g. Olsen, Payne and Reiter, supra n 43.

Skaar et al., supra n 22; Sriram, supra n 21.

Phuong Pham, and Patrick Vinck, ‘Empirical Research and the Development and Assessment of Transitional Justice Mechanisms’, The International Journal of Transitional Justice 1 (2) (2007), 231–248.

Kathryn Sikkink, ‘The Role of Consequences, Comparison, and Counterfactuals in Constructivist Ethical Thought’, in Richard M. Price (ed.) Moral Limit and Possibility in World Politics , pp. 83–110. (New York: Cambridge University Press, 2008), 103.

David Backer and Anupma Kulkarni, ‘Humanizing Transitional Justice: Reflections on the Role of Survey Research in Studying Violent Conflict and its Aftermath’, Transitional Justice Review 1 (4) (2016), 187–232; Gearoid Millar, An Ethnographic Approach to Peacebuilding: Understanding Local Experiences in Transitional States. (Abingdon, Oxon.: Routledge, 2014); Pham and Vinck, supra n 54; and Simon Robins, Families of the Missing: A Test for Contemporary Approaches to Transitional Justice. (New York / London: Routledge Glasshouse, 2013).

Onur Bakiner, ‘Truth Commission Impact: An Assessment of How Commissions Influence Politics and Society’, International Journal of Transitional Justice , 8 (1) (2014), 6–30.

Audrey Chapman and Hugo van der Merwe (eds.) Truth and Reconciliation in South Africa: Did the TRC Deliver? (Pittsburgh: University of Pennsylvania Press, 2008).

David Backer, ‘Watching a Bargain Unravel? A Panel Study of Victims’ Attitudes to Transitional Justice in Cape Town, South Africa’, International Journal of Transitional Justice , 4 (3) (2010), 443–56.

Gibson, supra n 41.

Duggan, supra n supra n 4 at 323.

e.g. Ben Ramalingam and Harry Jones with Toussaint Reba and John Young, ‘Exploring the Science of Complexity: Ideas and Implications for Development and Humanitarian Efforts’. ODI Working Paper 285. (London: ODI, 2008).

Peter M. Senge, ‘The Leader's New Work: Building Learning Organizations’, Sloan Management Review 32 (1) (1990), 7–23.

Rogers makes a useful distinction between complicated and complex interventions. Complicated interventions have lots of parts (multiple components, multiple agencies, multiple causal strands). Complex interventions have uncertain and emergent outcomes (multidirectional causal relationships, ‘tipping points’, intractable problems). Patricia J. Rogers, ‘Using Programme Theory to Evaluate Complicated and Complex Aspects of Interventions’, Evaluation 14 (1) (2008), 29–48.

For an exception see: Duggan, supra n 4 at 327, and n 18 at 204–5.

Sriram, supra n 21.

Fletcher and Weinstein, supra n 17; Stover and Weinstein, supra n 17.

Fletcher and Weinstein ibid.: 625–35; Stover and Weinstein ibid.: 325–39 provide a fuller list.

Tsing (Anna L. Tsing, Friction: An Ethnography of Global Connection . Princeton: Princeton University Press, 2005), states: ‘Cultures are continually co-produced in the interactions I call “frictions”: the awkward, unequal, unstable, and creative qualities of interconnection across difference’ (4). Her argument is that the universals of science, economic and social justice do not produce homogeneity but need to be understood through contingent practical encounters. ‘Engaged universals’ travel across distance and difference, mobilizing, changing and being changed (ibid.: 6–11).

Gearoid Millar, Jair van der Lijn and Willemijn Verkoren, ‘Peacebuilding Plans and Local Reconfigurations: Frictions between Imported Processes and Indigenous Practices’, International Peacekeeping 20 (2) (2013), 139.

Gearoid Millar, ‘Respecting Complexity: Compound Friction and Unpredictability in Peacebuilding’, in Annika Björkdahl, Kristine Höglund, Gearoid Millar, Jair van der Lijn and Willemijn Verkoren (eds) Peacebuilding and Friction: Global and Local Encounters in Post-Conflict Countries, pp. 32–47. (Abingdon, Oxon.: Routledge, 2016), 34.

Anna Reading, ‘The Restitutional Assemblage: The Art of Transformative Justice at Parramatta Girls Home, Australia’, in Paul Gready and Simon Robins (eds) From Transitional to Transformative Justice . (Cambridge: Cambridge University Press, 2018). 235–60.

Ibid., 236.

Celestine Nyamu-Musembi, ‘Towards an Actor-Oriented Perspective on Human Rights’. IDS Working Paper 169. (Institute of Development Studies, Sussex, 2002), 1–10.

Reynolds supra n 3.

Robert Stake, ‘Responsive Evaluation’, in Thomas Kellaghan and Daniel Stufflebeam (eds). International Handbook of Educational Evaluation . Kluwer International Handbooks of Education. (Zurich: Springer Netherlands, 2003), 63–68.

Whilst there will inevitably be a range of different and potentially contradictory perspectives, this approach serves to make the politics and power relations in a transitional context visible, rather than masking them as is typically done where it is assumped that the goals of transitional justice are not contested.

A related actor-oriented approach, with a more explicit radical agenda, labelled the ‘transformative paradigm’ has emerged from the development field. Donna M. Mertens, ‘Inclusive Evaluation: Implications of Transformative Theory for Evaluation’, American Journal of Evaluation 29 (1) (1999), 1–14.

e.g. Simon Robins, ‘Challenging the Therapeutic Ethic: A Victim-centred Evaluation of Transitional Justice Process in Timor-Leste,’ International Journal of Transitional Justice , 6 (1) (2012), 1–23.

See Sarah Earl, Fred Carden, and Terry Smutylo, ‘Outcome Mapping: Building Learning and Reflection into Development Programs’. (Ottawa: IDRC, 2001).

An example is a project of Unicef and the International Center for Transitional Justice, the Peacebuilding, Education and Advocacy Programme, which was evaluated using outcome harvesting techniques: Unicef, ‘Evaluation of UNICEF’s Peacebuilding, Education and Advocacy Programme (PBEA)’, (Geneva; Unicef, 2015).

Duggan, supra n 18, analyses the use of Outcome Mapping to plan, monitor and evaluate a transitional justice intervention in Guatemala: the interactive museum exposition called Por Qué Estamos Como Estamos? ( Why We Are the Way We Are? ), organised by the Centro de Investigaciones Regionales de Meso América (CIRMA).

Ricardo Wilson-Grau and Martja Nuñez, ‘Evaluating International Social Change Networks: A Conceptual Framework for a Participatory Approach’, Development in Practice 17 (2) (2007), 258–271.

Brianne McGonigle Leyh, ‘Changing Landscapes in Documentation Efforts: Civil Society Documentation of Serious Human Rights Violations’, Utrecht Journal of International and European Law 33(84) (2017), 44–58,

Jessica Dart and Rick Davies, ‘A Dialogical, Story-Based Evaluation Tool: The Most Significant Change Technique’, American Journal of Evaluation 24 (2) (2003), 137–155.

Juliet Willetts and Paul Crawford, ‘The Most Significant Lessons about the Most Significant Change Technique’, Development in Practice 17 (3) (2007), 367–379.

e.g. InsightShare (2015) ‘Case Study: Transitional Justice Participatory Video and Most Significant Change Evaluation Cote d’Ivoire 2015’. Oxford: InsightShare; Alana Poole (2014) ‘Baraza Justice: A Case Study of Community Led Conflict Resolution in DR Congo’. Washington DC: Peace Direct.

Poole, ibid.

Giovanni Dazzo, ‘Exploring Power and Values in the Human Rights Space’, American Evaluation Assocition: https://aea365.org/blog/exploring-power-and-values-in-the-democracy-and-human-rights-space-by-giovanni-dazzo/ .

Adapted from: Harry Jones, ‘A Guide to Monitoring and Evaluation Policy Influence’. ODI Background Note (Sussex: ODI, 2011), 1–12.

Margaret E. Keck and Kathryn Sikkink, Activists beyond Borders: Advocacy Networks in International Politics . (Ithaca / London: Cornell University Press, 1998); Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions are Changing World Politics . (New York: W. W. Norton and Company, 2011).

Alexander Wilde, ‘Irruptions of Memory: Expressive Politics in Chile’s Transition to Democracy’, Journal of Latin American Studies 31 (2) (1999), 473–500; Cath Collins, Post-transitional Justice: Human Rights Trials in Chile and El Salvador . (Pennsylvania: Penn State University Press, 2010); Laurel Fletcher, Harvey Weinstein, with Jamie Rowen, ‘Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective', Human Rights Quarterly 31 (1) (2009), 163–220.

Macdonald, supra n 1; Kieron McEvoy and Laura McGregor (eds.) Transitional Justice from Below: Grassroots Activism and the Struggle for Change . (Oxford: Hart, 2008); Rosalind Shaw and Lars Waldorf with Pierre Hazan (eds) Localizing Transitional Justice: Interventions and Priorities after Mass Violence . (Stanford, CA: Stanford University Press, 2010).

Laurel Fletcher and Harvey Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’, Human Rights Quarterly 24 (3) (2002), 573–639; Eric Stover and Harvey Weinstein (eds) My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity . (Cambridge: Cambridge University Press, 2004).

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TRANSITIONAL JUSTICE AND ITS IMPACT ON THE DRAFTING OF THE INTERIM CONSTITUTION IN PALESTINE

Journal Title

Journal issn, volume title, description, collections.

Justice: Transitional Justice

• Reference work entry
• First Online: 16 December 2023
• pp 1685–1688
• Cite this reference work entry

• Emilio Peluso Neder Meyer 3  

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Introduction

This entry aims to present the core of the notion of transitional justice, which is a transdisciplinary idea that cannot be reduced to the contours of jurisprudence. As such, it is a concept originating from the relationship between academic investigations and the engagement of researchers in state policies. Exploring these links, the entry encompasses a historical background, an attempt to shape the concept of transitional justice, some of the critical approaches to the theme based on the universal claims of the concept and new developments in the field related to the crises of democracy. Finally, the conclusion will detail the importance of making effective transitional justice taking into consideration not only the criticism the concept must address but also the current challenges posed by a growing wave of authoritarianism around the globe.

Historical Background

Paige Arthur ( 2009 ) tries to recover the definition of an autonomous field of transitional justice when she...

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Author information

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Federal University of Minas Gerais (UFMG) and Brazilian National Council for Scientific and Technological Development (CNPq), Belo Horizonte, Brazil

Emilio Peluso Neder Meyer

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Correspondence to Emilio Peluso Neder Meyer .

Editor information

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Regents Professor of the University, System of Maryland and Director of the University of Baltimore Center for International and Comparative Law, University of Baltimore School of Law, Baltimore, USA

Mortimer Sellers

Professor for Legal and Social Philosophy, Department of Legal Theory International and European Law, University of Salzburg, Salzburg, Austria

Stephan Kirste

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College of Law, Federal University of Minas Gerais, Belo Horizonte, Minas Gerais, Brazil

Marcelo Galuppo

Pontifical Catholic University of Minas Gerais, Belo Horizonte, Minas Gerais, Brazil

Vitor Medrado

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© 2023 Springer Science + Business Media B.V., Dordrecht.

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Peluso Neder Meyer, E. (2023). Justice: Transitional Justice. In: Sellers, M., Kirste, S. (eds) Encyclopedia of the Philosophy of Law and Social Philosophy. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-6519-1_576

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DOI : https://doi.org/10.1007/978-94-007-6519-1_576

Published : 16 December 2023

Publisher Name : Springer, Dordrecht

Print ISBN : 978-94-007-6518-4

Online ISBN : 978-94-007-6519-1

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Home > ETDs > Doctoral Dissertations > 569

Doctoral Dissertations

The ambivalence of participation in transitional justice: the promises and failures of peace in colombia.

Alejandro Urruzmendi , University of San Francisco Follow

Date of Graduation

Document type.

Dissertation

Degree Name

Doctor of Education (Ed.D.)

College/School

School of Education

International and Multicultural Education

International & Multicultural Education EdD

First Advisor

Monisha Bajaj

Second Advisor

Third advisor.

Lois Lorentzen

Fourth Advisor

Angana Chatterji

The dissertation inquires into participation in transitional justice in Colombia. Through an examination of Peace Councils and Mesas de Participación, it offers readers concrete examples of such mechanisms for participation, discussing their legal and bureaucratic structures. Weaving in ethnographic research, the author allows the participants themselves, victimized-survivors of the armed conflict and community leaders, to discuss the limits and possibilities of their work. Placing these voices and archival research in historic and theoretical context, the dissertation leaves readers with questions regarding the ambivalence of state, institutional, and participant’s stances towards participation in transitional justice.

Recommended Citation

Urruzmendi, A. (2021). The Ambivalence of Participation in Transitional Justice: The Promises and Failures of Peace in Colombia. Retrieved from https://repository.usfca.edu/diss/569

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Home > STUDENT > ETD > 105

Maurer Theses and Dissertations

Transitional justice and the future unified korea.

Yun Ju Kang , Maurer School of Law - Indiana University Follow

Date of Award

Document type.

Dissertation

Degree Name

Doctor of Juridical Science (SJD)

This dissertation study is an examination of transitional justice issues in dealing with human rights violations in the Democratic People’s Republic of Korea (DPRK) in the context of future unification of the Republic of Korea (ROK) and the DPRK. The systemic, widespread, and gross violations of human rights in the DPRK, which have been deemed to entail crimes against humanity, underscoring the urgent necessity of accountability and transitional justice. However, because the DPRK has not been taking any meaningful steps to improve the human rights situation or hold those responsible for human rights violations accountable, a scenario of unification of the two Koreas provides the best if not the only opportunity to properly deal with the human rights violations in the DPRK. Thus it is important to visualize such a scenario and the requirements it would entail for achievement of transitional justice.

Because transitional justice is a challenging process involving formidable tasks, it needs well-thought-out approaches and preparation. Transitional justice needs to be designed based on a deep understanding of context and planned comprehensively to redress victims effectively. Thus, in this dissertation the unique context of the ROK and the DPRK and some critical guiding principles for transitional justice are examined, including discussion of how a future unified Korea should prepare, design, and implement transitional justice to achieve genuine reconciliation and healing of the society. Specifically, it is argued that a victim-centered approach should be taken as a foundational guiding principle to adequately redress gross and serious human rights violations, with emphasis on the victim’s effective participation. Furthermore, transitional justice design should be based on a comprehensive understanding of the country’s context and needs, reflecting the views of the affected community obtained through consultation conducted in a way that promotes national ownership of the process. At the same time, the transitional justice process of future unified Korea should be designed and implemented in compliance with international norms and standards, taking a comprehensive approach that incorporates various measures to best serve large objectives, with due respect to gender and child status as well as other vulnerable groups.

Recommended Citation

Kang, Yun Ju, "Transitional Justice and the Future Unified Korea" (2021). Maurer Theses and Dissertations . 105. https://www.repository.law.indiana.edu/etd/105

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