What is Transitional Justice?

Transitional justice is a method that many countries use to address human rights violations by recognizing past wrongdoings of state and non-state actors, commonly facilitated by truth commissions[1]. Transitional justice allows for official recognition of marginalized experiences, begins a conversation on reform, and puts us on the road towards institutional revolution. While transitional justice was previously primarily associated with countries transitioning power, experiencing political distress, or at the end of conflict, it is now used by countries to address past human rights atrocities in established and otherwise stable countries[2]. This puts the spotlight on America, a country that is a leader on the world stage yet is incredibly behind in addressing racial discrimination and systemic injustice.

America’s lack of progress in addressing wrongdoings towards Black and Indigenous communities stems from one reason. Whether it be the teaching of white slaveholders and slaughterers of entire Indigenous tribes as heroes in schools or police violence being a common reality for Black and Brown Americans, it all comes down to one thing: America, specifically white America, the perpetrators of these historical wrongdoings, believes that they are the elite[1]. Because America is one of the world’s wealthiest countries and has an established “democracy”, it cannot be a nation in transition. This is a huge misconception that is hurting Black and Indigenous people. Transitional justice absolutely has a place in America, and a complete overhaul of the system is desperately needed. So, instead of questioning if transitional justice is needed in America, the real question should be how it should look in America.

How Can the U.S. Learn from Abroad?

Reparations

According to international human rights law, reparations are a fundamental right as a recognition of the sufferings of victims[1]. Reparations, commonly thought of as monetary, can be in different forms (restitution, satisfaction, guarantees of non-repetition, and rehabilitation[2]). Due to the harm to Indigenous and Black communities over hundreds of years, reparations in the U.S. will have to take various forms to provide comprehensive acknowledgment of wrongdoings. In 2011, Colombia passed the Victims’ Land and Restitution Law, an overarching policy that uses a comprehensive approach to reparations (includes housing, debt forgiveness, institutional reform,etc.). [3]The program is quite large but is quite a comprehensive step towards justice.

According to international human rights law, reparations are a fundamental right as a recognition of the sufferings of victims[1]. Reparations, commonly thought of as monetary, can be in different forms (restitution, satisfaction, guarantees of non-repetition, and rehabilitation[2]). Due to the harm to Indigenous and Black communities over hundreds of years, reparations in the U.S. will have to take various forms to provide comprehensive acknowledgment of wrongdoings. In 2011, Colombia passed the Victims’ Land and Restitution Law, an overarching policy that uses a comprehensive approach to reparations (includes housing, debt forgiveness, institutional reform,etc.). [3]The program is quite large but is quite a comprehensive step towards justice.

Police reform

In June of 2020, after the killing of George Floyd, the U.N. Human Rights Council condemned the violence towards Black people perpetrated by law enforcement[1]. Protestors and activists have offered solutions, including defunding the police, the reallocation of police funds towards communities, housing, training, etc., and complete abolition of the current U.S. policing system[2]. Both ideas have shown great promise in other countries. In 1981, Italy officially demilitarized the police, making the police a civil entity[3]. Also, in the 1980s, Spain completely revamped their police force by demilitarizing and placing the police under civilian authority[4]. These countries focused on removing systems that were harming civilians or subsections of the population. When a system is broken and has been since inception, it cannot continue in a nation that truthfully acknowledges their wrongdoings.

Truth Commissions

Overall, truth commissions serve as an overarching vessel for transitional justice. They acknowledge issues and provide solutions (for the U.S., these solutions would include reparations and police reform, among other things). Truth Commissions have been sparsely implemented in the U.S., but perhaps they can serve as a precedent for future nationwide truth commissions in the states[1]. Truth commissions have been seen in Greensboro, North Carolina, addressing the 1979 “Greensboro Massacre”, and the Child Welfare and Reconciliation Commission in Maine to address the separation of native children from their families since the 1970s[2]. However, there has been little acknowledgment by government officials, including the president. Justice is needed at the national level as well.

Looking abroad, Brazil created smaller truth commissions to handle local issues, discuss changes with the community, and operate in tandem with the national commission[1]. While there is debate about the intentions behind the reform, Brazil highlights the importance of community in truth commissions and listening to those who were personally impacted. Furthermore, in Argentina, a commission was created to address violations during a seven-year struggle after a military coup[2]. The truth commission acknowledged the horrors and set up guidelines for reforms and reparations. By looking at Argentina, the meaningfulness and the lengths that truth commissions must go to acknowledge injustices properly can be seen.

Proposed Solutions for the U.S.

In the U.S., transitional justice would need to address the historic and systemic human rights violations done by the U.S. to those of African and Indigenous descent. According to the U.N. Declaration on the Rights of Indigenous Peoples, Indigenous populations have the right to be consulted and consent to any policy that impacts their rights[1]. These inclusions should extend to the Black community as well. Especially when dealing with racial issues, these populations have largely been ignored and excluded in politics and social justice. One cannot do anything for a community without the community. Acknowledgment and inclusion are fundamental here.

Since the United States is quite large, and each state consists of its own communities, it is proposed that the United States adopt smaller commissions, much like Brazil, that address local and community wrongdoings[1]. Reparations would include removing monuments glorifying slaveholders and “Wild West heroes” that destroyed native communities, issuing a formal apology to impacted communities, etc. Also, the creation of a program, like Colombia’s in 2011, that provides resources and outlines plans for systemic reform[2]. Moreover, police reforms should seek to revamp law enforcement holistically, not singular procedures. Listening to suggestions made by communities and advocates like defunding the police or complete abolition would be the right step in rethinking community justice.

In conclusion, the narrative must be changed, and that is what transitional justice will help do. The U.S. government, up until now, has simply placed a band-aid on larger issues at hand. The United States is a nation in transition, and it is time to develop comprehensive steps towards acknowledging and ensuring justice for Black and Indigenous communities.

Sydney Lang is a graduate student pursuing a Master of Science in Justice, Law, and Criminology at American University in Washington, D.C. I am a research assistant at American University studying the history surrounding European courts. Furthermore, I have been published in my university's graduate school journal and on the Oxford Human Rights Hub blog. I have a great interest in international human rights law, criminal justice, and studying how race and gender intersect in those areas.

[1] González, E., & Zvobgo, K. (2021, March 14). As America Seeks Racial Justice, It Can Learn From Abroad. Foreign Policy.

[2] Joshi, Y. (2021, March 15). Does Transitional Justice Belong in the United States? Just Security.

[3] Ibid.

[4] Basic Principles and Guidelines on the Right to a Remedy and Reparation. OHCHR.

[5] Ibid.

[6] Forrero-Nino, L. (2012). Colombia 's Historic Victims and Land Restriction Law. Law and Business Review of the Americas, 18(1), 97–104

[7] Human Rights Council Adopts 14 Resolutions, Including on Excessive Use of Force by Law Enforcement Officers Against Africans and People of African Descent. OHCHR.

[8] González, E., & Zvobgo, K. (2021, March 14). As America Seeks Racial Justice, It Can Learn From Abroad. Foreign Policy.

[9] Lutterbeck, D. (2013). Demilitarizing the Gendarmerie?: The Cases Of France, Italy and Spain. The Paradox of Gendarmeries: Between Expansion, Demilitarization and Dissolution (pp. 20–31). essay, Ubiquity Press, Geneva Centre for the Democratic Control of Armed Forces.

[10] Ibid.

[11] Ladisch, V., & Roccatello, A. M. (2021, April 26). The Color of Justice: Transitional Justice and the Legacy of Slavery and Racism in the United States. The International Center for Transitional Justice.

[12] Ibid.

[13] Schneider N., de Almeida G.I. (2018) The Brazilian National Truth Commission (2012–2014) as a State-Commissioned History Project. In: Bevernage B., Wouters N. (eds) The Palgrave Handbook of State-Sponsored History After 1945. Palgrave Macmillan, London. 4

[14] Truth Commission: Argentina. United States Institute of Peace. (2018, October 18).

[15] United Nations. (n.d.). U.N. Declaration on the Rights of Indigenous Peoples.

[16] Schneider N., de Almeida G.I. (2018) The Brazilian National Truth Commission (2012–2014) as a State-Commissioned History Project. In: Bevernage B., Wouters N. (eds) The Palgrave Handbook of State-Sponsored History After 1945. Palgrave Macmillan, London.

[17] Forrero-Nino, L. (2012). Colombia 's Historic Victims and Land Restriction Law. Law and Business Review of the Americas, 18(1), 97–104