"The search for truth will continue to awaken human enthusiasm and activity as long as there is a pulse in the veins and a spirit that feels..." – this statement by the German philosopher Hegel serves as an appropriate introduction to our study titled “Memory of Pain and Transitional Justice.” What is meant by the “memory of pain” is the memory of the victims and their families if they have passed away, as well as the memory of society that suffered due to the pain endured by the victims, their families, and the community as a whole—pain that left lasting effects and requires treatment in a manner consistent with the values of justice on one hand, and anticipates the proper rebuilding of society on the other, to prevent the recurrence of such violations of victims and their human rights—particularly the infliction of agonizing pain that remains etched in the collective memory.
The question of the victims is a question of anxiety, not reassurance. It is a question of unease, not comfort; a question of doubt, not certainty. And questions generate more questions: What happened? How did it happen? Why did it happen? Who is responsible? And what is the way to compensate the victims and provide redress?
Through various experiences, international legal thought has developed the concept of transitional justice, in which the memory of pain is considered a key pillar to keep the issue in the spotlight and prevent it from falling into oblivion. That is why it is often said in discussions of transitional justice: “We forgive, but we do not forget.” This notion is important and necessary as a lesson for future generations. To delve into what is meant by the memory of the victims (the memory of pain), we must first examine the concept of transitional justice itself. So, what does it mean?
What is Transitional Justice?
Transitional justice remains a somewhat ambiguous or unclear concept, especially due to confusion surrounding the term “transitional.” Does transitional justice really exist? And how does it differ from traditional (criminal) justice that is based on judicial rulings and recourse to various courts?
If the idea of justice is an absolute value that cannot be ignored, denied, or even postponed under any pretext, then transitional justice shares the goals of traditional justice in restoring rights, revealing the truth, ensuring accountability, compensating victims, and reforming legal and judicial systems and law enforcement agencies to achieve national and societal reconciliation.
However, transitional justice differs from traditional justice in that it focuses on transitional periods, such as the shift from internal armed conflict to peace, from violent internal political struggle to democratic transformation, or from authoritarian rule to democratic openness and pluralism. Another example is the transition from colonial rule or foreign occupation to self-rule or the establishment of local governance.
Such phases are usually accompanied by essential reform measures and efforts to provide redress to victims of gross violations and their families, as well as to keep public memory alive concerning past abuses. The aim is to prevent the repetition of past pain. Transitional justice should not be confused with “revenge justice,” which fosters retaliation and hostility, thus perpetuating cycles of violence and suffering.
Some may believe that choosing the path of transitional justice contradicts the path of criminal justice, whether nationally or internationally. However, choosing the former does not exclude the latter, especially regarding victims and the issue of impunity for perpetrators.
International Experiences
Although still emerging, the concept of transitional justice and its political, legal, human rights, and humanitarian motivations have begun to take shape—albeit slowly—in many global experiences, particularly in Europe after World War II in relation to the victims of Nazism, despite some politicization, especially following Germany’s division by the Allied powers.
Transitional justice gained a new dimension in Latin America, notably in Chile after the military coup of September 11, 1973, led by General Pinochet against the democratically elected government of Salvador Allende.
From the 1970s to the present, the world has witnessed over 40 experiences of transitional justice. Among the most notable are those of Chile, Argentina, Peru, El Salvador, Rwanda, Sierra Leone, South Africa, East Timor, Serbia, and Greece.
Countries like Portugal, Spain, and former socialist states have also undergone types of transitional justice and national reconciliation. However, some experiences remain incomplete or fall short of the basic conditions of transitional justice, particularly in revealing the truth, ensuring accountability, compensating victims, and undertaking institutional reforms.
Morocco’s experience should be highlighted as one of the most significant Arab and global examples of peaceful democratic transition from within the state, especially through the inclusion of the opposition—led by Abderrahmane Youssoufi, who was appointed Prime Minister—and the addressing of enforced disappearances and torture cases. This included establishing the Equity and Reconciliation Commission, compensating victims, and reforming and rehabilitating many institutions.
Some may think that the transitional justice formula alone is sufficient to remedy the situation, restore rights, and advance democratic development—particularly by focusing on the memory of pain. But such a belief is unrealistic unless transitional justice is seen as a continuous path toward national reconciliation, civil peace, and the elimination of tensions, terrorism, and violence—ultimately achieving institutional reform and democratic transformation.
Despite its relatively recent historical emergence, transitional justice has demonstrated that there is no single complete human experience to be copied exactly. Rather, there are diverse and multiple paths to achieving it, national reconciliation, and democratic transition. This conclusion is especially relevant in the Arab world: no Arab country can do without the principles of transitional justice if it is to pursue democratic transformation. Each country needs it to varying degrees to establish the necessary foundations for reform and transformation and to end societal division and discrimination.
Merely accepting the idea of transitional justice and national reconciliation means that broad sectors have come to acknowledge the importance and necessity of dealing with the memory of pain from a human perspective. It signals a readiness to break with the past based on a new vision for rebuilding the state and society on new foundations grounded in respect for human rights and the rule of law. This, in turn, requires training, development, and reform of government institutions, particularly the judiciary and executive branches, including police and security forces.
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