This month’s meeting was about the topic of transitional justice. We started off with the history of the concept, noting that it became a topic of academic interest in the 1980s and expanded significantly in the 1990s with the work of academics like Neill Kritz and Teitel. This increased interest in the topic was connected to the end of the Cold war, which meant the binary of capitalism and communism no longer dominated the public consciousness. It was also linked to reflections on the changing governments at the time, with Eastern Europe moving away from communist dictatorship and academics looking into the events that had accompanied decolonisation. We then discussed the three types of transitional justice: the academic, the political and the judicial.

The academic aspect of transitional justice is strongly connected to the question of what transitional justice is exactly. The term has different meanings to different people.  For Paul de Greiff, the core element of transitional justice is the establishment of norms and the respect of Human Rights values. After a crime against humanity such as a massacre or even a genocide, it makes sense that people want to look back and get an understanding of what happened. That said, according to de Greiff the most important next step is that human rights are accepted as a norm. People need to start believing in them, or they need to believe in them again. Accepting human rights norms is a fundamental lynchpin of preventing the crisis from repeating. Ruti Teitel instead emphasises the judicial element of transitional justice, arguing that it is inherently different to traditional justice. Exceptional laws and procedures are inherent to transitional justice, which makes it difficult to compare it to quotidian justice. Teitel therefore looks at it from a constructivist lens, arguing that the concept of justice has a different meaning depending on time and place. This view was challenged by Eric Posner and Adrian Vermeule, who argue that transitional justice should be seen as fundamentally similar to everyday justice. Seeing it as fundamentally different makes comparisons impossible. It risks getting lost in the particularism of individual cases and missing the forest for the trees. We also noted how young the academic debate on this topic is, having only really picked up steam at the end of the 20^th century. There is no consensus on the topic yet, but there have been many attempts to formulate policies on it.  

This brings us to the political side of transitional justice. The United Nations defines it as always concerning the transition from autocracy to democracy and always sees it as supported by human rights. The debate that led to this definition followed a similar trajectory to the academic debate, beginning in the 70s and 80s and growing in importance over time. For the UN, as disappearances and tortures in Latin America became a source widespread concern, it played a role in this discussion as well. The large-scale disappearances citizens in countries like Chile led to the establishment of the Working group against enforced and involuntary disappearances in 1980. The approach taken was very state-centric, but the issue was that many countries did not want to cooperate with the working group. In 1985 it was also agreed that states were obligated to research disappearances were they to occur. 

These kinds of agreements set the stage for the UN’s important role in the judicial aspect of transitional justice. Over the course of the 1990s, the declarations of earlier decades were put to the test. The Yugoslavia tribunals of 1993 and the Rwanda tribunal of 1994 especially highlighted how active the UN would be when it came to the topic. As a neutral third party, the UN was in a good position to play an important role, especially when it came to figuring out what exactly happened. This is a large part of the motivation for the many truth commissions that were set up around conflicts at the time.

This opened the door on the discussion about the effectiveness of these actions. We noted how the Yugoslavia tribunals succeeded when it came to the gathering of evidence and clearly laying out events, but it has not led to stability in the Balkan region. Especially in Serbia, the trials are still popularly considered as political actions that unnecessarily punished the Serbs. Regional division has in no way been tapered over by the tribunals. We also discussed the case of Germany, which is often seen as the exemplar of establishing a democracy from the ruins of authoritarianism. We noted how Germany largely became a democracy despite the Nuremburg Trials, not because of them. There was a great degree of luck involved, as the country already had experienced politicians like Konrad Adanauer who had lost their positions in 1933 and therefore remained untainted by Nazi collaboration.

Over the course of the 2010s, transitional justice became increasingly important to the UN. It defined three key elements of it: accountability, justice and reconciliation. The state lost its central role in the implementation of transitional justice. It became a people centred process, where the people have a meaningful role to break the cycle of violence. A case study for how this can work is Spain after the death of Franco. Franco’s regime was one where nobody was clean, including the republicans. Franco had sought to establish a Francoist state without Franco by declaring the King as his official succesor. In 1975 Franco died, an old and senile man. He had groomed Juan Carlos to succeed him by reinstating the monarchy, but instead the King began the process of transitioning to democracy. This was done slowly and without any “punitive” transitional justice. In fact, Prime Minister Suarez established the 1977 amnesty law, meaning all political crimes with political motive would be amnestied. No one had to look back on the mistakes they made. Injustice was not responded to.

In 1978 a new constitution was written, with the aim of getting past the Franco regime playing a big role. The societal movement in Spain also played a big role. In the 60s there were people researching to find out what had happened. In the 70s and 80s, especially after the death of Franco, this trickle became a torrent. In the 80s, thousands of books were written about the subject. Spanish scholars were recapturing something that had previously been the purview of English authors. Because there were more books written about it, people were talking about it more. The pact of forgetting shifted. Textbooks show this shift, where people became more reflective in the 90s especially. There was also considerably more attention paid to those who had disappeared during the war and under Franco in the 90s.

This whole debate in Spain led to the law of 2007, which was described by the King as a law that came from the people themselves instead of the state. Francoist street names and statues were removed. There were no trials, but there was a search for truth and reconciliation. This is a long process and it is ongoing. The absence of transitional justice in spain is not total, it was really just the absence of judicial processes. Accountability, justice and reconciliation were arguably taking shape over the long term. We discussed this question, noting that the judiciary especially is still very right-leaning. We came to the conclusion that Spain is not post-transitional, it is still going through the process, especially because it is a slow and ongoing process and doing so at a slow but steady pace. Putting people on trial publicly is arguably a very blunt instrument, which especially faces difficulty when people don’t see a problem as a problem.

We then discussed the possibility of transitional justice in Ukraine and Gaza, coming to the conclusion that it is significantly more likely to succeed in the latter. Netenyahu’s political credibility collapsed on October 7^th, with his strongest argument for remaining in office being the impracticality of elections in a war. Just days before our meeting, there were thousands of Israelis protesting against him, demanding a hostage deal. It is deeply unlikely for such a deal to take shape without some form of reciprocal justice demands from the Palestinians. In the Russian invasion of Ukraine, by contrast, the most significant critics of Putin’s policies have come from people like Igor Girkin. These are figures who are even further on the political right than Putin. They do not oppose the war itself, but the way Putin is conducting it, often arguing his approach is too limited if anything. This makes transitional justice deeply unlikely, as it would likely have to be imposed externally. Russia’s nuclear arsenal makes this improbable.

Christophe Van Der Kwast