A Case for Transitional Justice

By Emma Steiner

The Trump administration has dissected, denounced, decried and dissolved many of the Obama administration’s actions. That the current president is so set on undoing his predecessor’s accomplishments should not keep those on the left from evaluating the Obama administration as well, especially through the lens of inaction. Why were no top-level bankers prosecuted for their role in the financial crisis of 2008? Why have so few Bush-era officials had to answer for their crimes, ranging from “enhanced interrogation” to the Iraq invasion? When bringing up Obama’s inaction, the standard response is: what else could be done? What would you have done? It is becoming clear that much more could have been done if not for the Obama administration’s lack of political will and optimistic desire to break continuity with the practices of the past. If sunlight is the best disinfectant, a failure to apply it leaves a festering wound, with complications that continue to amass.

In 2009, Obama was asked whether he would appoint a special prosecutor to investigate and potentially act against Bush officials who had committed crimes. He did not rule out the possibility, but said that his intention was to “look forward.” Very little action was taken until, in the wake of the 2014 torture report, Obama admitted, “We tortured some folks,” and his DOJ issued some memos denouncing extrajudicial interrogation. That was the full extent of action taken, and Obama’s administration went on to commit its own human rights abuses, ranging from escalation of drone warfare to full-scale NSA surveillance on Americans. Afraid of appearing partisan, the Obama administration looked the other way when it came to prosecuting war criminals and torturers. The lack of confrontation is coming back to haunt us.

The policy response to the United States post-Bush era violations of both international and American law was merely an amnesty in which those who partook in violent crimes and and those who provided legal cover for those crimes were assured that they would never have to reckon with the violations they enabled. In perhaps the most blatant example, this morning, President Trump nominated a woman who potentially cannot visit the EU without facing an arrest warrant for torture for director of the CIA, something that should be impossible in a functional democracy with a rule of law. Had the Obama administration instead pursued a process of transitional justice, such an unthinkable trespass could have been prevented.  

Transitional justice is not an obscure academic concept, but a necessary process for building democracy in the wake of authoritarian abuses. In Germany, this unofficial process took the form of lustration, the removal of Communist Party officials and Stasi members from political participation. The Stasi Records Agency was established to investigate and document the crimes of the East German secret police, and now any German can request their file (1). The government has even set aside a small team of researchers to piece together shredded Stasi files that may contain important information. In South Africa, this process of transitional justice took place in the form of Truth and Reconciliation Commissions.

Transitional justice and lustration can occur in any number of ways, but are all vital to the process of restoring faith in a democracy. Human rights scholar Lavinia Stan notes that there are two types of transitional justice: state-driven and society-driven (2). State-driven methods include “truth and reconciliation commissions, court trials and amnesties, purges and screenings, public official apologies…financial compensation, restitution and reparation programs” while society-driven methods include “acknowledging the past, rehabilitation, access to the governmental records detailing repression and persecution, the rewriting of official historical canons, and symbolic reparations” (3).

Clearly, there is a plethora of options for pursuing transitional justice, and the benefits of transitional justice are many. Not only are people able to confront the past and learn the truth of what their government has done in their name, but they are also able to have faith once more in the processes that guide their daily lives. A 2016 study shows that post-Communist states that have applied lustration processes are as a whole less corrupt than those that have not. Germany, a country with a comprehensive, if unofficial, lustration process, has less corruption than Russia, a country in which a foreign intelligence agent for the FSB is a long-serving president. Almost as critically, the government is seen as less corrupt. It is hard to argue that in such a toxic period of American politics, the continued allowance of those who were complicit in crimes of the highest order to participate in governance is making things any better. Are we really better served by looking forward at all times, or has the failure to reckon with the past ensured that our democracy is eternally hamstrung?

The purpose of a truly left policy is to imagine that something can be done, that ills we view as incurable can in fact be cured, and that evils we view as perennial can be eradicated. It is a policy based on reducing harm, wherever we can. It is a way for us to ensure that looking forward does not mean never learning from or confronting the dark past, and a way to ensure it does not become our present. Transitional justice provides a way for a society to return to wholeness after transgressions against it.

  1. Bernd Schaefer, “A Dissident Legacy and its Aspects: The Agency of the Federal Commissioner for the Stasi Records of the Former GDR (BStU) in United Germany,” in Secret Agents and the Memory of Everyday Collaboration in Communist Eastern Europe, eds. Apor Péter, Horváth Sándor, and Mark James, (London: Anthem Press, 2017). http://www.jstor.org.proxy.library.georgetown.edu/stable/j.ctt1v2xsz8.5 and Peter E. Quint, “Confronting the Past: The Stasi Files,” in The Imperfect Union: Constitutional Structures of German Unification (Princeton University Press, 1997). www.jstor.org/stable/j.ctt7rrrn.19
  2. Lavinia Stan, introduction in Transitional Justice in Eastern Europe and in the Former Soviet Union: Reckoning with the Communist Past, (London: Routledge, 2009), 5.
  3. Ibid.

Image from Olaus Magnus, “Defence of the oppressed.”

Emma Steiner is an MA candidate in the Georgetown School of Foreign Service’s Eurasian, Russian, and East European Studies graduate program.

5 thoughts on “A Case for Transitional Justice

  1. Ervin Dervisevic

    Post-communist states are not a good comparison. Post-1991, Eastern European countries were trying to shake off a system that was fully compromised, and by many people seen as imposed by the USSR. In large part, they were trying to deal with issues of occupation and collaboration.

    Any kind of transitional justice in the US (or in any democratic country) would be far more risky politically and potentially quite damaging. Obama was not a risk-taker.


  2. Mark Lovett

    I follow your argument, but I don’t think these remedies apply to the United States, or at least this situation. The various pathways of transitional justice that you cite occurred in states that had some kind of Constitutional change. That action alone allows for the examination of an era that has unambiguously concluded. That clear end point is one reason (among others) for our track record of assembling Commissions to examine events that recently concluded. However the ambiguity about underlying policies that are political in nature are far more difficult to address. I agree that an independent counsel should have been appointed to address the Iraq invasion and use of torture. However that tool was weakened by Congress’ choice to sunset that statute.

    Moreover, we’ve been here before and found a different path forward. The Vietnam War created even greater political polarization than the Bush era. The path forward was a realignment of our political leadership and foreign policy goals. Certainly many members of Congress that voted on the Gulf of Tonkin Resolution continued to serve for decades longer. But the policies that allowed for the progression of the war were disavowed. This happened without prosecution of the Kennedy, Johnson or Nixon administrations.


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