Interrogating Transitional Justice: The Multiple Meanings of a Concept

Abstract

‘Transitional justice’ refers to the full range of efforts to deal with past human rights violations. Since its inception, the concept has undergone an immense expansion of interpretation as it has been applied to a wider range of scenarios in the field. This paper examines the dilemmas of transitional justice as a concept, showing how it has evolved over time and adapted to new contexts. After a brief conceptual history, the paper analyzes the two components of the concept, ‘justice’ and ‘transition’, followed by an examination of the contemporary challenges facing the concept. We argue that the evolving and multifaceted nature of transitional justice defies a singular definition, as neither the term ‘justice’ nor ‘transition’ fully encapsulates its scope. Although conceptual ambiguities persist and debates over its boundaries continue, the conclusion argues that the term remains analytically and normatively valuable and warrants further engagement rather than abandonment.

1. Introduction

The concept of transitional justice, as originally understood, referred to measures designed to address past human rights violations, provide justice for perpetrators and victims, and contribute to reconciliation in the context of transitions from autocracy to democracy or from war to peace. In times of war, civil war, and repressive authoritarian regimes, serious human rights violations, such as murder, enslavement, expulsion, arbitrary detention, disappearances, torture, and rape, are often committed systematically and on a large scale. Examples range from military dictatorships in Latin America, the apartheid regime in South Africa and communist regimes in Eastern Europe to civil wars in Southeast Europe, Africa and Asia. The experience from the 1980s to the beginning of the 2000s was reflected in the 2004 United Nations Secretary-General’s Report on the Rule of Law and Transitional Justice, where transitional justice was defined as “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof” [1].

This paper examines the dilemmas associated with transitional justice as a concept. Rather than evaluating transitional justice mechanisms in specific cases, it aims to identify general trends and interrogates the applicability of transitional justice as a guiding concept for human rights research and practice. Following this introduction, the Section 2 traces the origins of the concept. The Section 3 and Section 4 form the core of the paper and explore the conceptual challenge that the evolving and multifaceted nature of transitional justice is not fully captured by the terms ‘justice’ and ‘transitional’. As a result of different emphases, interpretations, and extensions of meaning, transitional justice has become a polysemic concept with an immense range of objectives. This is one of the reasons why the implementation of transitional justice measures often falls short of expectations. The Section 5 reflects on contemporary challenges to transitional justice, arguing that while there is uncertainty about how far the concept can be stretched, emerging debates about the relevance of transitional justice to issues of race, gender or the environment should not be ignored.

2. The Origins of Transitional Justice

The question of how to respond to wrongdoings committed during a dictatorship, a war or a civil war has long occupied philosophers, lawyers, and politicians alike. Frequently cited historical examples of addressing atrocities and war crimes include the different strategies of dealing with the oligarchs after the restoration of democracy in Athens in the years 411 and 403 BC, or public and private measures for retribution, restitution and compensation in the context of the first and second French restoration of 1814 and 1815 [2]. Niccolò Machiavelli’s Discorsi discussed various options for dealing with rebel leaders after the end of a civil war, ranging from punishment (such as killing or exile) to amnesty [3].

International criminal law took shape in the 20th century. For example, the term ‘crimes against humanity’ was first used to condemn the Armenian genocide. The Nuremberg Trials of the major war criminals of the Nazi regime in 1945 adopted the term in law to refer to serious violations of human rights, i.e., atrocities considered so heinous that they affect not only individuals but the entire human community. Thus, the criminal investigations of Nazi atrocities after World War II were groundbreaking for today’s approach to human rights violations [4] (p. 70), signaling a broad consensus that something must be done in response to systematic human rights violations and mass atrocities and that a moral, legal, and/or political obligation to victims and survivors requires accountability and bringing perpetrators to justice.

The origins of the concept of transitional justice, however, lie in the 1980s and early 1990s. During the democratic transitions in Latin America, newly elected officials were faced with the question of how to deal with the crimes of their predecessors, mostly military dictatorships, and how to guarantee the protection of human rights in the future. A group of politicians, human rights activists and intellectuals debated the requirements of law and justice in times of transition at several international conferences. In the run-up to one of them, entitled Justice in Times of Transition, held in Salzburg, Austria, in 1992, the organizers repeatedly used the term ‘transitional justice’—including law professor Ruti Teitel, who claims to have invented it [5]. Following the emergence of the field of practice, transitional justice became established as a term denoting a new field of academic research in the mid-1990s, aided by the publication of a three-volume handbook titled Transitional Justice [6] (for a detailed conceptual history see [7]).

The historical context in which the term was coined was characterized by the convergence of two phenomena: the increasing number of transitions from autocracy to democracy and the global institutionalization of human rights protection that proliferated with the end of the Cold War [7,8]. Beginning in the 1970s, in what has been called the “third wave” of democratization, a metaphor describing the temporal clustering of democratic transitions [9], numerous countries in Southern Europe, Latin America and Eastern Europe underwent transitions from authoritarian rule. The third wave was accompanied by a paradigm shift in democratization research from modernization theory to actor- and institution-centered approaches. With this shift, political negotiation and decision-making processes, rather than structural preconditions, became the focus of attention in the analysis of democratic transitions [10].

In line with the new paradigm, decisions about how to deal with the past were understood as an integral part of the negotiation processes between political elites. While the outgoing authoritarian elites wanted to avoid being held accountable for their crimes, the incoming democratic government faced a dilemma between prosecution and punishment on the one hand, and forgiveness and forgetting on the other. The hope was that justice and accountability for human rights violations could make an important contribution to the establishment of the rule of law and democracy, but there was also a danger that it could jeopardize the success of the democratic transition [9] (pp. 211–231); [10] (pp. 28–32); [11]. Decisions on how to deal with the crimes of the previous regime were thus caught in a tension between backward-looking and forward-looking orientations. Actions guided by the ethics of conviction (or the logic of appropriateness), which aim at the widest possible clarification of the past, prosecution, and reparations, stand in stark contrast to actions guided by the ethics of responsibility (or the logic of consequences), which prioritize national reconciliation, the consolidation of democracy, and the guarantee of human rights protection under the new regime.

The concept of transitional justice, which has come to encompass the full range of efforts to address past human rights violations, has been subject to criticism since its inception. This may be because it is imprecise in several respects, as both the terms ‘justice’ and ‘transitional’ are used in multiple and often questionable ways. The example of transitional justice in Brazil illustrates some of the controversies surrounding the concept. In the Brazilian case, it is factually incorrect to speak of ‘justice’ when the term is associated with legal responses. It would only be applicable if the definition of the term is expanded beyond judicial mechanisms to include non-judicial mechanisms of accountability, such as reparations and truth-seeking, or even amnesties [12]. Regarding the second element of the concept, the accountability mechanisms undertaken by the Brazilian state took place long after the formal return to democracy. Therefore, the term ‘transitional’ can no longer be meaningfully associated with the moment of transition as a political turning point. What follows, then, is an exploration of the conceptual challenge of the multifaceted and evolving nature of the concept of transitional justice.

3. More than ‘Justice’: Facets of Transitional Justice

Transitional justice is not limited to ‘justice’ in the narrow sense of judicial mechanisms for dealing with the past but is frequently associated with the quest for ‘justice’ in the ethical sense of fairness or justness. However, the substance of the concept of justice remains opaque. Does justice mean that the perpetrators are being prosecuted and punished? Is it primarily about the satisfaction of the victims, the restoration of their reputation and the recognition of their suffering? Does justice refer to a balance between perpetrators and victims, or even to a reconciliation between them, with the aim of enabling future coexistence? Or does it mean the establishment or restoration of a legal system? In light of these uncertainties, this section discusses various facets of justice in transitional situations.

3.1. Transitional Justice as a Legal Imperative

Transitional justice is often seen as a legal imperative. It is informed by a concept of retributive justice, which is based on an individualized notion of guilt and responsibility and aims to respond to wrongdoing through punishment. It manifests itself in the form of criminal investigations and trials. Punishment is seen as a necessary evil in response to a crime [13] (pp. 79–80). However, these retributive notions of transitional justice have found themselves in the crossfire of criticism: they are often disqualified as revenge, and there are fears that too much justice could be destabilizing, complicating conflict resolution and hindering efforts to build and sustain peace and democracy [14,15,16]. Making compromises on justice with powerful perpetrators of human rights violations has long been an integral part of negotiations in transitions from authoritarian rule or from conflict to peace [11]. The immediate goal of ending violence and repression often led to amnesties for human rights violations, and sometimes even to denunciations of demands for justice as obstacles to peace. More recently, however, there has been a marked shift away from impunity for human rights violations. This has been accompanied by a growing understanding that the two goals of peace and justice, far from being irreconcilable, are mutually reinforcing [17,18]. Peace goes beyond the immediate goal of ending a conflict and relies on justice and accountability to ensure its sustainability.

At the same time, the understanding of punishment has expanded from the idea of retribution to include other goals such as deterrence, prevention, and reintegration into society. In addition to retribution, criminal law serves three purposes: negative prevention, positive prevention, and rehabilitation of the offender [13] (p. 79). Criminal law acts as a deterrent because it scares potential offenders with the threat of sanctions (negative prevention). However, criminal law also serves to encourage law-abiding behavior, strengthens trust in the law, and provides legal security (positive prevention). In addition, an offender who has been proven to have committed a crime receives his or her just punishment and, indirectly, guidelines for future behavior to facilitate social reintegration (rehabilitation of the offender).

During transitions to democracy and to peace, positive prevention is essential. Human rights trials cement equality before the law and government accountability. A democratic regime must make it clear that neither (former) political leaders nor the military or police are above the law. Since accountability is an essential element of democracy, a government must also face up to its responsibility for the crimes of its predecessor. Especially after periods of extreme violence, the principle of impartial justice serves as an example of non-violent conflict resolution. The prosecution of human rights violators is therefore often seen as a contribution to the establishment of the rule of law in post-authoritarian and post-conflict states [19,20].

Transitional justice as a legal imperative is based on the legal norms that are generally applicable in a society at a given point in time. International law is the predominant legal source for prosecuting massive human rights violations committed during dictatorships or wars. International human rights law (such as the 1948 Convention on the Prevention and Punishment of Genocide or the 1984 Convention against Torture) and customary international law require governments not only to protect human rights, but also to punish human rights violations committed under a previous regime [18,21].

The principle of universal jurisdiction even allows states to prosecute serious crimes against humanity regardless of the location of the crime and the nationality of the perpetrators and victims [22,23]. A prominent example is the case of former Chilean dictator Augusto Pinochet, who was arrested in London in 1998 at the instigation of Spanish judge Baltasar Garzón in order to be tried in Spain. Subsequent efforts in several European countries to bring perpetrators from Latin America and Africa to justice have therefore been referred to as the “Pinochet effect” [24]. In a more recent example of universal jurisdiction, Germany initiated the first-ever trial for state torture in Syria in April 2020. At the Koblenz Higher Regional Court, two former officials of President Bashar al-Assad’s security apparatus were charged with crimes against humanity, including torture, murder, sexual violence, and other offenses [25].

3.2. Transitional Justice as a Moral Imperative

In addition to the legal obligation, transitional justice stems from a moral obligation of the state to the victims and their families. This is not just about the satisfaction that victims may derive from the punishment of perpetrators. Rather, as advocated by the United Nations in its Principles to Combat Impunity [26], judicial mechanisms generally need to be complemented by a right to truth and memory, a right to justice and reparation, and a right to guarantees against the recurrence of violations of fundamental human rights.

As a moral imperative, transitional justice not only addresses the needs of victims, but also sends a signal to society as a whole. The process of dealing with the past expresses the moral reprehensibility of human rights violations and sends a clear message that such serious crimes should not go unpunished and that no one should ever be subjected to such inhumane treatment again. The moral condemnation and sanctioning of past human rights violations thus implies a commitment to human rights norms that should guide future actions.

The legal and moral connotations of transitional justice can conflict when maximalist moral claims are confronted with pragmatic legal realities. In many cases, there is a clash between procedurally correct legal practice and the demand for substantive justice—that is, between the goal of leaving a dictatorial regime behind and the impulse to punish its agents as severely as they deserve. Faced with the choice of bringing only a handful of selected perpetrators to justice while adhering to due process, or conducting a full-scale prosecution with lower procedural standards, the former, pragmatic solution is often chosen [27] (p. 121). The frustrated demand for substantive retributive justice in the face of the predominance of procedurally correct principles is expressed in the famous phrase of East German dissident Bärbel Bohley: “We wanted justice [Gerechtigkeit], but we got the rule of law [Rechtsstaat] instead” (cited by [2], p. 235).

3.3. Transitional Justice as Social Reintegration

The legal and moral considerations discussed so far aim at retribution and punishment for human rights violations. They are based on an individualized understanding of guilt and suffering and thus emphasize the just treatment of perpetrators and victims. Transitional justice scholars often contrast the concept of retributive justice with that of restorative justice, e.g., [15,28], which aims to restore social relations, promote peaceful coexistence, and reconcile conflict parties. This concept assumes that a crime is primarily directed against a person, rather than against a section of the law, and that the strained relationship with that person or his or her surviving relatives needs to be improved. Moreover, one of the basic premises is that the causes that created the conditions in which human rights violations could occur are to be found in society. Transitional justice as social reintegration is seen as victim-centered, but without losing sight of the social context.

Restorative justice is marked by its purpose and its specific approach. It focuses less on the crime itself and more on repairing the harm that the crime has caused to the victim and to society as a whole. The pursuit of justice is an inclusive process, involving not only victims and perpetrators, but calling on the entire community to participate in the disclosure of the truth and the subsequent process of reconciliation and healing. Whereas retributive justice equates ‘injustice’ with violations of the law, the principle of restorative justice empowers participants, especially victims, to define the nature of the justice they seek [27]. Typical instruments are truth commissions (many of which explicitly claim to contribute to social reintegration through their self-designation as truth and reconciliation commissions) and traditional methods of reconciliation aimed at improving the coexistence of the local community.

3.4. Transitional Justice as Reparation

In addition to retributive and restorative justice, some authors propose a further variant, reparative justice, whose main aim is to compensate victims for their suffering [29,30]. Elster [2] identifies the desire of victims to have lost property restored as a motive for transitional justice. While reparations primarily aim to compensate victims for past wrongs, they also include a future-oriented and societal facet through the hypothesized benefits of reparations for peace and reconciliation [30] (pp. 119 ff.). The most common form of compensation is reparations. In addition, there are numerous variants of restitution, such as the restoration of the status quo ante through release from prison, the return of confiscated property, the restoration of civil and political rights that have been taken away, vocational rehabilitation, or the calculation of lost time for social security purposes. In contrast, the rehabilitation of victims through medical and psychological care or legal and social assistance is rarely part of official transitional justice measures [31].

3.5. Transitional Justice as a Historiographical Project

Transitional justice also involves political and historical mechanisms [28,32]. These include historical review, i.e., the collection and documentation of evidence of the human rights violations. In this way, the truth about the crimes is officially recognized and brought to the attention of a wider public. In the medium term, the atrocities are accepted as part of the national history, making it more difficult for revisionists to deny them. In addition to the opening of secret archives for researchers, journalists or private individuals, truth commissions are a standard instrument for the discursive production of a historical truth [17,33]. They document the stories of victims and witnesses, while at the same time synthesizing the many individual testimonies into a comprehensive picture of the nature and extent of human rights violations and exposing the systematic nature of repression. The findings are usually published in a final report.

However, most historians today point out that there is no single historical truth, but that there are different interpretations of the past at any given time. There is no ‘full stop’ that ends the historical reckoning with a violent past. Accordingly, the final report and its recommendations are intended as a starting point for subsequent measures to improve the protection of human rights and for a policy of remembrance aimed at anchoring the documented atrocities in the collective and cultural memory. This may include commemoration days and memorials, as well as the treatment of the recent past in history textbooks.

3.6. Transitional Justice as a Political Program

In addition to seeking a consensus on the past, transitional justice launches a political program for the future. Dealing with past injustices symbolizes a founding act of a democratic regime. Conversely, the legitimacy of a young democracy would be undermined from the outset if it were unable to come to terms with the country’s heinous past. A common instrument, which Teitel [30] (p. 149 ff.) calls “administrative justice”, is vetting and lustration to prevent the persistence of authoritarian enclaves in the state apparatus. Administrative personnel are screened for their involvement with the old regime, and severely compromised individuals are dismissed from the civil service [33].

In addition, institutional reforms, also known as guarantees of non-recurrence (GNRs) or ‘never again’ pledges, are often designed during or shortly after the transition to prevent the recurrence of human rights violations [34]. These may include constitutional and legal reforms to modify access to political power, improve the functioning of the state bureaucracy, ensure the independence of the judiciary, and establish civilian control over the security forces. It is now widely recognized that transitional justice is most likely to achieve its goals in conjunction with institutional reform. A publicly acceptable minimum level of accountability for human rights violations depends on the prior achievement of stabilization and the restoration of some semblance of the rule of law [35].

Latin American countries, notably Chile and Argentina, exerted a considerable impact on the conceptual evolution of GNRs in the context of transitional justice. For example, the 1990 report of the National Truth and Reconciliation Commission in Chile included a series of recommendations to prevent future human rights violations through legal and institutional reforms. However, as Davidovic [34] (p. 386) has observed, GNRs are often regarded as “the least developed pillar of transitional justice”. The implementation of GNRs raises the challenge of balancing the call for universal norms with the need for context-specific solutions. Furthermore, the expansion of GNRs beyond legal and institutional reforms to encompass a wide range of measures, including educational and cultural initiatives and the involvement of civil society, raises questions about the scope and limitations of GNRs as an element of transitional justice [34].

3.7. Transitional Justice as Transformation

Finally, there are calls for transitional justice to be interpreted as transformative justice. The focus of transitional justice advocates on violations of the right to physical integrity has neglected the structural causes of conflict. Poverty, inequality, and other long-standing injustices of the past tend to persist into the future, despite the apparent political change that transition represents. This continuity poses a challenge to traditional approaches to transitional justice, namely state accountability, individual responsibility and institutional mechanisms. It is difficult to sustain peace and democracy as long as the lingering effects of colonial violence, systemic injustices such as racism and gender-based violence, and social inequalities that caused past outbreaks of violence and were often exacerbated during periods of conflict and dictatorship persist. Given the persistence of injustice, Gready and Robins [36] proposed that transformative justice constitutes a form of practice or activism that facilitates the provision of “justice in transition”, a more expansive approach than its traditional counterparts. The concept of justice in transition emphasizes the need to address not only the acts of violence that occurred prior to the transition, but also the “continuities of injustice” [36] (p. 972).

Thus, the link between transitional justice, development and social equity has increasingly come into focus [37,38], leading to calls for a transformative turn [35]. Transitional justice can no longer serve as a temporary special-purpose mechanism to manage the transition from dictatorship to democracy or from war to peace but should be a holistic and comprehensive transformative endeavor [35,39] (p. 820).

Accordingly, in countries that have experienced authoritarian rule, such as Chile, there is now a broader recognition of the need to address persistent inequalities rooted in the period of dictatorship. Initially, the scope of transitional justice in Chile was limited by the continuation of the 1980 constitution from the dictatorship period and focused on the punishment of perpetrators and reparations for direct victims rather than broader social and institutional reforms. The exclusive focus on retributive and restorative justice led to the neglect of social and distributive justice and hindered the transition to democracy. This perspective was elucidated in the context of the social uprising in Chile in October 2019, which highlighted the pervasive social inequalities that persist in Chile [40].

To date, however, efforts to broaden transitional justice to include economic and social rights have focused primarily on socioeconomic issues. Other issues that generate structural inequalities, such as gender or race, have long been overlooked.

4. More than ‘Transitional’: Expansion of Transitional Justice to Different Contexts

Transitional justice mechanisms, such as prosecutions, reparations and truth commissions, are based on the assumption that their use is the only commendable and appropriate way to address past human rights violations. As a result, the concept has significant teleological implications. The teleological and linear nature of transitional justice is reflected in the concept of transition, which represents a narrative of change towards liberal democracy. This narrative is constructed around a ‘before and after’ framework, with the ‘before’ period representing the autocratic regime and the ‘after’ period representing the transition to democracy. In its original sense, therefore, the term ‘transition’ denoted a journey with a defined starting point and a definitive ending point. The subtitle of Neil Kritz’s handbook described the subject area of transitional justice as follows: “how emerging democracies reckon with former regimes” [6]. Similarly, Ruti Teitel defined transitional justice as “the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes” [4] (p. 69). The prevailing understanding of political change in this context was “the move from less to more democratic regimes” [30] (p. 5); see also [41].

Democratization scholars considered transitions from autocracy to democracy to be rare events, each with its own context-specific characteristics. Transitions were also assumed to be a comparatively brief period between the repressive past and a democratic future. Therefore, proponents of transitional justice saw it as a distinctive form of justice, something exceptional, connected to a specific moment in time [30]. It was fundamentally different from other legal measures and institutions due to its orientation towards political goals, such as the legitimacy and stabilization of a young democracy [42,43]. In this understanding, transitional justice was less concerned with complex historical developments but rather seen as a way of addressing temporarily relevant political issues in phases of political change. It was assumed that these challenges would be restricted to the transition phase and could be overcome, and that transitional justice was therefore a truly ‘transitional’ phenomenon.

However, there is considerable controversy surrounding these assumptions. First, a teleological understanding of transition as a linear progression from autocracy to democracy does not accurately reflect actual trajectories of regime change. Not all transitions from authoritarian rule lead to ‘full’ democracy; many states remain in a gray zone, stabilize as hybrid regimes or defective democracies, or slide back into autocracy. Accordingly, transitional justice is no longer reserved for dealing with the past in democratic transitions, but is applied to very different contexts, such as transitions that do not lead to democracy, but also transitions from (civil) war to peace or situations where there is no transition at all. The concept of transitional justice has thus experienced a horizontal expansion through its transfer to different contexts [44].

Second, the understanding of transitional justice as something exceptional has also been challenged. From the perspective of legal theory, scholars such as Posner and Vermeule [45] have argued that those engaged in the analysis of transitional justice have erred in holding a stereotypical view of ordinary justice in consolidated democracies and contrasting it with transitional justice. In fact, there are many parallels between transitional justice and ordinary justice, and there is no distinctive legal framework for transitional justice that differs from that of a liberal democracy. Transitional justice measures have become standard tools, and the practice of transitional justice has seen a vertical expansion through the involvement of a variety of actors [44].

Third, in democratizing countries, struggles over how to deal with the past are not confined to the transition phase, but accompany a society for decades [46]. The first wave of state-led initiatives to deal with the past often fails to satisfy the demand for justice, and subsequent calls by political and social actors for a broader debate on human rights violations often trigger a second wave of transitional justice. In other cases, the power relations and uncertainties of the transitional situation may delay the start of formal transitional justice measures. Thus, in relation to the original idea of its limitation to a short period of time, transitional justice has also experienced a temporal expansion.

4.1. The Horizontal Expansion of Transitional Justice

Following the rise in the number of internal violent conflicts since the 1990s, transitional justice tools have increasingly been used in the transition from violent conflict to a peaceful post-conflict order as one of the many components of peacebuilding [47]. In these contexts, transitional justice takes place under much more difficult conditions than in the democratizing countries whose experiences shaped the emergence of the concept in the 1980s and early 1990s [48,49]. Most countries in the third wave of democratization had functioning state institutions, and many of them had previous experience with democracy. Political parties and civil society organizations were well established and often the driving forces behind the democratic transition. Transition thus meant the restoration of democratic institutions and traditions after an interruption. Moreover, in these cases, transitional justice mechanisms targeted acts of state repression against a specific group—the political opposition, dissidents, activists—thus facilitating a clear distinction between perpetrators and victims.

These conditions were absent in most of the civil war scenarios in which transitional justice has been applied since the 1990s. Most of the countries concerned had little or no democratic tradition, functioning state institutions had yet to be established, and political parties and civil society organizations were weak. In contrast to cases of systematic and targeted state repression against the political opposition, such as in Argentina or Chile, human rights violations in countries such as Bosnia, Rwanda, or Sierra Leone took the form of mass atrocities involving non-state and para-state actors and affecting broad segments of the population. As a result, the distinction between victims and perpetrators became more complicated. Under these circumstances, transitional justice faced challenges that were quite different from those in the context of democratic transition.

The horizontal expansion [44] of transitional justice has not stopped with its application to transitions from war to peace. Increasingly, transitional justice is being applied in contexts where there is no transition at all. One scenario is attempts to apply transitional justice in ongoing conflicts to influence their course, reflecting the increasingly dominant understanding of transitional justice as part of international peacebuilding efforts. Examples include the Ugandan government’s referral of the situation in the country to the International Criminal Court in 2003, Colombia’s experimentation with different transitional justice mechanisms in the years leading up to the 2016 peace agreement, or the international community’s attempts during the Syrian crisis to prepare the ground for a proper transitional justice process while the conflict continued [50].

Another scenario is the use of transitional justice in response to political violence in unstable democracies. This includes cases of electoral violence, such as in Kenya after the 2007 elections or in Côte d’Ivoire at the turn of the year 2010/2011, both of which were investigated by the International Criminal Court; or unconstitutional changes of government, such as the coup against President Manuel Zelaya in Honduras in 2009, the violent aftermath of which was addressed by a truth commission.

A further push for the expansion of transitional justice followed the revelations of the mistreatment of prisoners in Iraq, Afghanistan and at the Guantanamo detention center by US soldiers, which raised the question of whether and how powerful states can be held accountable for human rights violations in the context of international interventions [18,51]. Another debate concerns the responsibility of multinational corporations for human rights abuses, including their involvement in state and paramilitary violence during a civil war, as in the case of Colombia [52] (p. 147), or human rights violations at their production sites in developing countries [24].

In addition, Western democracies have recently promoted initiatives to address historical injustices in former colonies, against indigenous peoples in their territories, or against former slaves and their descendants. Measures of redress such as official apologies, reparations, the establishment of commissions of inquiry, or the creation of places of public remembrance have been discussed as forms of transitional justice in countries such as Canada, Australia, and New Zealand [53,54]. Finally, the issue of racial injustice has come to the fore, and various countries in the Global North, including Canada, the United States (USA), Norway, and Sweden, have used truth commissions to address this issue [55]. In the USA, for example, subnational truth commissions investigate racial violence and injustice, with a particular focus on anti-indigenous and anti-black violence. Recently established commissions have expanded their scope to include other racial and ethnic minorities, immigrants, the LGBTQIA community, and broader structural issues such as institutional racism [56].

In sum, transitional justice is increasingly decoupled from transitional situations in the narrow sense, and its rationale goes far beyond contributing to democracy, the rule of law, and the protection of human rights. A unifying element of all these transitional justice efforts, however, is the goal of addressing serious human rights violations.

4.2. The Vertical Expansion of Transitional Justice

The decoupling of transitional justice from transitional situations is accompanied by a pluralization of actors. Thus, the concept has also experienced a vertical expansion, both above and below the level of the nation-state [44,57]. The question of whether and how to deal with past human rights violations used to be part of the transitional negotiation process between outgoing and incoming elites, as described by actor-centered approaches in comparative democratization research [10,11]. As its scope has expanded, transitional justice has shifted from an internal to an international issue [57]. Originally characterized by the involvement of politicians, lawyers and human rights organizations at the domestic level, it has now become a standard tool in the international community’s toolbox for dealing with post-conflict scenarios.

Consequently, international actors play a leading role by advising local decision-makers or by being responsible for the implementation of transitional justice measures. International organizations, especially the United Nations, are addressing the issue and developing guidelines and best practices (e.g., [1]). It is now common for courts and truth commissions to draw on the experience of other countries, to rely on international law, and to have external funding and staff. In addition, international tribunals have been created, beginning with the ad hoc tribunals for the former Yugoslavia and Rwanda established by the UN Security Council in 1993 and 1994, and continuing with the signing of the Rome Statute to establish a permanent International Criminal Court, which began operations in The Hague in 2002. Dealing with the past has established itself not only as a component of peacebuilding, but also as a program line in international development cooperation. With international NGOs such as the International Center for Transitional Justice, which channels information flows and pools material and human resources in the ‘global transitional justice business’, a specialized community of experts has emerged [58,59].

At the same time, civil society and local actors, including not only human rights NGOs but also a broader range of social movements pushing for democratization and post-conflict reconciliation, have been involved in transitional justice processes. Transitional justice has thus come to encompass a variety of bottom-up approaches, such as the establishment of unofficial truth commissions, which have been particularly important when political leaders have been unwilling to address past abuses because of guilt or a reluctance to draw attention to uncomfortable truths [36].

Civil society organizations and social movements, which have played a crucial role in advancing democratization in different parts of the world, are often overlooked as active political actors. In this regard, Gready and Robins [36] have introduced the term “new civil society” to describe actors that not only bring about transformative change, but also rethink understandings of justice and rights during transitions and propose alternative models that represent new forms of transitional politics. In that regard, they differ from “old” civil society, which privileges advocacy, support and capacity building, with the state and state institutions as the main point of reference [36]. Rethinking the function of civil society is a means of rethinking the entire transitional justice process, as it challenges the way fundamental elements such as politics and justice are understood.

However, despite the new trend of emphasizing the potential of a participatory approach, attempts to improve local, bottom-up participation in transitional justice processes have often focused only on broadening participation rather than making it more meaningful. As a result, scholars have emphasized the need to truly integrate the voices, needs, and priorities of ordinary participants in transitional justice processes in order to achieve meaningful outcomes [60]. Other proposals relate to the participation of victims. The prevailing institutional focus has limited the scope for understanding victim participation to formal mechanisms, without adequately considering meaningful forms of victim participation that occur outside of formal mechanisms. In the case of Guatemala, for example, indigenous Guatemalan women have sought redress for conflict-related sexual violence. They have participated in a variety of formal and informal spaces over time, influencing transitional justice processes in ways that are not captured by traditional models [61].

4.3. The Temporal Expansion of Transitional Justice

The challenges of implementing transitional justice in different contexts beyond actual transitional situations have led to observations about temporality, arguing that transitional justice “can no longer serve merely as epiphenomenal special-purpose institutions applied on a time-limited basis to mediate the shift between two distinct regimes” [35] (p. 820). Thus, it can be argued that the temporal scope of transitional justice has expanded. Debates about how to deal with the past are not limited to the moment of transition but can occupy a society for decades.

Conversely, the temporal expansion refers to formal transitional justice measures. In some countries, the uncertainties of the transitional situation, the fragility of democratic institutions, limited resources, political resistance, or societal divisions may delay or impede their establishment. However, these obstacles may diminish over time, allowing human rights defenders to challenge the compromises of the transitional situation, particularly the waiver of prosecution. Citing examples from Latin America, Collins refers to these delayed initiatives as “post-transitional justice” [46]. She emphasizes that post-transitional justice is often driven by non-state actors operating both above and below the state level, thus linking the temporal expansion and the vertical expansions discussed here.

On the other hand, in countries where transitional justice was possible at an early stage, the initial state-led mechanisms for dealing with the past are often incomplete or fragile and do not satisfy the demand for justice. As a result, political and social actors may call for “justice in transition” [36]—that is, a broader debate about the systematic nature of identified human rights violations and their underlying causes, and the role of long-standing injustices of the past that extend into the future despite the apparent political change that the transition represents. Thus, while the traditional understanding of transitional justice focused on immediate measures such as truth commissions, trials, reparations, and institutional reforms to address past atrocities, the transformative turn of the field drew attention to the long-term challenges that remain after these initial efforts [35].

In addition, it is worth noting that the discussion on the horizontal expansion of transitional justice has also taken into account a temporal expansion, in this case to the pre-transition period. What could be called ‘pre-transitional justice’ aims at facilitating or accelerating the transition to democracy and/or peace, ensuring future stability and promoting social cohesion. This has been experimented with in the context of the Syrian crisis, where the international community sought to prepare the ground for a proper transitional justice process while the conflict was still ongoing [50].

5. Contemporary Challenges

Contemporary debates on transitional justice are characterized by somewhat contradictory trends. On the one hand, there has been a growing backlash against transitional justice as a form of neocolonialism or Western imperialism, particularly from postcolonial theory and Global South perspectives. At the same time, there have been further attempts to expand the concept to include new issues.

Criticism of transitional justice has increased in the context of a growing confrontation between the Global North and the Global South. One strand of criticism sees transitional justice as neo-colonial Western imperialism in a new guise. In this view, Western efforts at transitional justice are not only paternalistic and in violation of the principle of national sovereignty, but also evidence of continuing imperialist power interests. From this perspective, transitional justice is ethnocentric, technocratic, externally imposed, and attuned to the interests of Western governments [62,63]. These critics interpret transitional justice as a new version of the West’s ‘civilizing mission’, where the claim to intervene in defense of human rights serves as a legitimizing basis for unlimited external interference.

The power gap between ‘the West’ and ‘the rest’ is also reflected in the asymmetrical application of transitional justice. It seems paradoxical that the West (or the Global North) has played the leading role in defining, funding and implementing transitional justice mechanisms, while most of the sites of their implementation are in poorer states in the Global South [52,64] (p. 139). The double standards surrounding the field are notable. The West has championed transitional justice as a means of addressing past human rights violations, supporting the concept of universal jurisdiction. At the same time, Western governments ensure the protection of their own citizens from such jurisdiction [52,65]. For example, the USA was a strong supporter of the ICC at its inception but then never ratified the Rome Statute.

Finally, the gap is also evident in the dynamics of research in the field. For instance, most conferences at which transitional justice scholars discuss their research take place in Europe or the USA, with a significant proportion of participants coming from these regions. Similarly, most publications are written in English and by scholars from the Global North, even though they deal with transitional justice interventions that take place in the Global South. Research is therefore concerned with people, events, and practices that take place in regions that are geographically and culturally distinct from those of the scholars [66]. There is a paucity of funding for research based in the Global South, which is a significant barrier to the advancement of knowledge outside of the Global North. Consequently, “the majority of studies are extractive, leaving those whose lives are affected with little input into interpretation of findings or their application to policy” [66] (p. 17).

To ensure that the field remains relevant, there have been calls to integrate other issues of global concern into transitional justice debates. Climate change and environmental damage in the context of war and conflict is an issue that has recently gained attention. From a historical perspective, the impact of war on the environment is evident, such as the use of Agent Orange during the Vietnam War, which continues to harm populations due to its toxicity. The war in Ukraine provides a contemporary example of environmental impact, particularly the destruction of the Kakhovka Dam in 2023. This has resulted in damage to significant parts of the wilderness in the area, as well as the dumping of tons of lubricating oil into the water, causing serious damage to the country’s flora and fauna [67]. Therefore, researchers have started to analyze the applicability of environmental restorative justice in transitional settings [52]. For example, Killean [68] identifies two main contributions of environmental restorative justice: it challenges neocolonial tendencies in the field of transitional justice by developing mechanisms that are inclusive of, for example, indigenous peoples; and it challenges the anthropocentrism of transitional justice by recognizing other victims of conflict who are not human.

Recent research has also highlighted a critical gap in transitional justice: its failure to adequately address racial injustice, despite the fact that race is a fundamental axis of historical and contemporary oppression. Jain and Nouwen argue that while transitional justice is designed to address systematic human rights violations, it has largely ignored the racial dimensions of past atrocities, particularly those related to colonialism and structural discrimination [69]. One of the barriers to a more comprehensive approach is the growing dominance of legal frameworks, particularly international criminal law, that focus on individual criminal accountability while overlooking broader systemic patterns of racial violence. That is, the focus is on the individual when the issue is of societal concern.

Similarly, Sirleaf and Achiume draw attention to the prevalence of racial injustice in many societies undergoing transition, yet discussions of race and racism remain largely absent from the mainstream transitional justice discourse [70]. This lack of engagement raises fundamental questions about whether the field, as currently conceived, is capable of addressing racial justice in a meaningful way. By coding nearly all publications in the International Journal of Transitional Justice, the authors found that only a small fraction of articles explicitly addressed the issue, leading to the conclusion that “systemic racism is embedded in the global order of nation-states as a legacy of European colonialism to an extent that makes race and racism analytically salient in far more contexts than the existing literature recognizes” [70] (p. 16).

Gender has also become a topic of debate in transitional justice, especially given that transitional justice has historically recognized conflict-related sexual violence (CRSV) as a crime under international law. However, the field has struggled to truly integrate gender perspectives. For example, Monroy-Santander and Otálora-Gallego argue that top-down transitional justice mechanisms often fail to engage with the everyday realities of survivors [71]. Their recent study of Colombia shows how survivors exercise their activism both horizontally—by strengthening community ties—and vertically—by influencing national and international institutions [71]. Another exemplary case is Ukraine, where CRSV has been systematically used as a weapon of war, yet survivors face deep structural and legal barriers to justice, from social stigma to political constraints on prosecution [72].

Survivors of CRSV and other forms of gender-based harm often seek not only criminal accountability, but also access to reparations, social services, and opportunities for economic empowerment. In this sense, Horne argues that expanding the range of harms recognized by transitional justice mechanisms—including psychological trauma and economic precarity—is essential to creating truly transformative justice processes [72]. These perspectives illustrate the notion of transitional justice as an evolving and intersectional framework, far from a rigid concept incapable of adapting to different times and global challenges.

6. Conclusions

As we have shown, the concept of transitional justice, if taken literally, no longer adequately describes the object so designated. The concept is constantly in motion, has expanded into contexts that differ from the original connotations of ‘justice’ and ‘transition’, involves actors below and above the national level, and extends in time beyond the moment of transition. The multiplicity of practices, mechanisms, goals and ideals that have come to be traded under the label of transitional justice makes it difficult to pinpoint what transitional justice actually is. In this respect, Garton Ash [33] was prescient when he expressed concern about the narrowness of the concept as early as the 1990s.

Over time, transitional justice as a field of research and a field of practice has addressed human rights violations in contexts fundamentally different from those around which the field was created. It is therefore not surprising that research is increasingly moving towards new debates that are globally relevant and therefore cannot be ignored. However, there is some controversy about the extent to which the field of transitional justice should be expanded to encompass various contemporary challenges. More fundamentally, it is debatable whether the expansion of the concept is a danger or an asset, and indeed many scholars deplore its overstretching and the resulting arbitrariness [73] (p. 13). One possible consequence would be to abandon the too narrow and therefore misleading concept and to invent a more comprehensive one that takes into account the expansion of the field and the multiplication of goals and actors.

However, we argue that the concept is valuable and warrants further engagement. One reason is the weakness of the alternatives. Alternative terms that have been introduced into the discussion so far, such as dealing with the past, memory politics, memory work, or reconstruction of history, have often been linked to specific contexts or mechanisms and do not encompass the full spectrum of today’s understanding of transitional justice. Moreover, practical debates on how best to address past human rights violations continue to demonstrate the relevance of the concept of transitional justice to situations other than those of transition from autocracy to democracy. Certain leitmotifs, such as the search for a balance between remembering and forgetting, the quest for justice, the fight against impunity, the provision of reparations to victims, and the reintegration of divided societies, are equally relevant in new contexts.

From an academic perspective, transitional justice has become the name for a relatively well-defined field of research that examines how justice in all its facets can contribute to overcoming human rights violations and to social change in transitional situations. The field has analyzed a growing variety of instruments that have been developed to come to terms with past human rights violations. This analytical perspective should be used (and sharpened) to understand transitional justice processes in different contexts. Rather than lamenting the loss of the narrow focus on processes of democratization and state-led mechanisms to respond to gross human rights violations under an autocratic predecessor regime, transitional justice research should embrace the challenge of addressing the expansion of the field.