What does "transitional justice" stand for?

The term transitional justice describes efforts to come to terms with the consequences of violence and human rights abuses in the course of the transition from dictatorial regimes and tyrannies to democratic civil societies. Here transitional justice is understood as both an important element of long-term reconciliation between antagonistic social groups and the establishment of democratic and peaceful conditions. Transitional justice embodies four main instruments. Firstly, trials against the perpetrators of human rights abuses, secondly, the historical clearing up of these crimes by way of so-called truth commissions, thirdly, materialistic and symbolic compensation of victims of human rights abuses and, fourthly, the implementation of institutional reforms in order to remove incriminated persons from their positions. Transitional justice can be applied within a national and international framework, but also in mixed forms.

The dissemination of transitional justice after 1945

The Nuremberg Trials, conducted by the International Military Tribunal after the end of World War II against the dominant figures of the National Socialist regime, are considered to be a precedent of transitional justice. The fact that only the four victorious allied powers provided the judges certainly compromised acceptance of the Nuremberg trials among the German population. A similar case can be noted with regard to the trials conducted in Tokyo after World War II against the Japanese military leadership. This refers to a basic problem of all efforts to achieve transitional justice that basically aims for inner-societal reconciliation after systems collapse. This objective is often impeded considerably by strong societal opposition against such measures. This is all the more true when transitional justice is imposed from outside.

In the 1970s and 1980s the concept of such a transitional justice targeting the punishment of perpetrators was applied several times in the transition from military regimes to democracies. Two notable examples were Greece (1975) and Argentina (1983). But the concept of transitional justice has gained strong momentum especially since the end of the 1980s, when a wave of dictatorship collapses swept the world. Transitional justice was then identified as a central tool of democratisation. Apart from the already developed instrument of criminal persecution of those who perpetrated human rights abuses, the other tools already mentioned increasingly gained in importance, too: truth commissions, the vetting of institutions and - not least - the compensation of victims. All this was closely linked to the context of the rise of human rights as a universal standard.

The German reparation as an example and model of transitional justice

In Germany, after the Second World War, all the instruments of transitional justice were put into practice from the beginning – with the exception of truth commissions, which only decades later became a widely disseminated measure of societal reconciliation. As a rule, truth commissions serve as an alternative to the criminal persecution of former perpetrators. This has been applied, as, for example, in South Africa after the end of the apartheid regime, when the reconciliation striven for is based on a precarious compromise between the old and the new political powers. Such considerations did not seem necessary in Germany after 1945 since the Nazi regime had suffered an out-and-out defeat. As a result all measures taken in the interests of transitional justice first came from the victorious allied powers.

This also applies to the indemnification of victims of the Nazi regime, so-called reparation. Although ideas for compensating victims of Nazi persecution existed after 1945 also on the German side, the demands of the western allies, especially of the United States, went far beyond that. As a result the foundations for a complicated system of material reparation were laid even before the foundation of the Federal Republic of Germany in 1949. To the present day more than 60 billion euros have been spent on these reparations. Implementing reparation in a just way was considered by the western allies to be an important touchstone of the gradually consolidating West German democracy.

The first central pillar of reparation was the restitution of stolen or confiscated property, which - first and foremost - concerned Jews. Apart from that there was the compensation for personal damage. The third pillar of reparation was established in 1952 with the treaty with Israel and the Jewish Claims Conference about collective compensation of Jews persecuted by the Third Reich. All these measures were, in principle, only directed at former or present German citizens who had become objects of National Socialist persecution between 1933 and 1945. Whereas the Germans persecuted by the National Socialists constituted a somewhat manageable group, the dimensions exploded, however, as soon as the many millions of people beyond the borders of the German Reich were taken into account, and such people became targets of inhumane National Socialist measures during the Second World War. This is all the more true as the dividing line between "normal" military strategy and National Socialist terror increasingly faded in the course of a war that claimed the lives of about 36.5 million people in Europe, of whom at least 19 million were civilians.

Over the decades, however, the exclusion of foreign victims of persecution from reparations has been overcome more and more. With it the lines that were initially drawn between the compensation of Nazi victims and conventional war reparations gradually faded. Since the end of the 1950s the Federal Republic of Germany has agreed on comprehensive reparation payments with 12 western nations in favour of Nazi persecution victims from these countries. Yet victims of persecution behind the Iron Curtain remained excluded until the end of the Cold War. Only after the reunification of the two German nations in 1990 did the situation change. In recent years East European Holocaust survivors and former forced labourers of the German war economy have at last also received at least modest compensatory sums.

Conclusions

Most of those who have received reparations from the Federal Republic of Germany, as well as those who have been denied such compensation, were already living outside Germany after 1945. An additional factor is that a large part of the reparations was made a long time after the conclusion of the transitional phase from Nazi dictatorship to the Federal Republic’s post-war democracy. Consequently the reparation measures do not fit the classic pattern of transitional justice exactly. The compensation of Nazi persecution victims by the Federal Republic of Germany can therefore be considered not so much a tool for the democratisation in West Germany as a consequence of the successful transformation, actively assisted by the allies, into a liberal and democratic civil society.

Nevertheless, the example of compensation of Nazi victims in the Federal Republic of Germany repeatedly served as a reference for efforts to compensate historical injustice. Repercussions include, for example, the regulations in the statute of the International Criminal Court that came into effect in 2002 – apart from the punishment of the perpetrator it also rules on the compensation of the victim. Yet even more important perhaps is the example of German reparation as a precedent regarding claims for compensation for injustices done in the distant past. These include claims for reparation of slavery such as those that are currently being made in the United States, amongst other nations. In this case it is certainly no longer about the quest for long-term reconciliation in the transition phase between dictatorship and democracy. Such claims are rather a battle against systematic injustice that is considered to be a consequence of historical human rights abuses.

Reparation of victims of human rights abuses is thus not only a matter of topical interest in a limited transition period, intended to cushion the often precarious change of two different political systems. Instead it also serves as a tool to overcome long-term conflicts which can result from historical human rights abuses.