Transitional justice and the United States of America: between utopia and realism

The following dissertation provides a theoretical explanation of the developments and the origins of transitional justice as an emerging field of law and tries to analyse whether such an established and stable democracy, like the US, can support the application of a transitional justice programme aimed at acknowledging and reckon with an oppressive past that still today affects Americans’ lives. The dissertation is divided into two main parts, the first one providing a theoretical background on what transitional justice is and the second one analysing more in-depth the case of the United States. The first Chapter provides a timeline of the evolution of transitional justice identifying three steps towards today’s understanding of the field. It must be remarked that transitional justice has further evolved and its boundaries are still to be uncovered. The second Chapter highlights the main controversial aspect of transitional justice, that is, its relation to the traditional understanding of the fundamental principle of the rule of law and it concludes with an overview of the sources of transitional justice which span through different, and at first glance contradictory, understandings of justice. These include retributive, restorative, reparative, social, and transformative justice. The third, and Conclusive chapter of the first part, presents an overview of the traditional transitional justice measures adopted by different states in their experience of reckoning with oppressive pasts and radical transitions stemming from the different models of justice explained previously. The main tools presented are criminal prosecution, truth commissions, and institutional reforms like vetting and reparations. The second part of this dissertation starts with chapter four providing a historical background explaining why it has become evident that a stable democracy like the United States needs to reckon with its past and acknowledge the harm caused to its citizens, especially to those from the Native American and Black communities affected today by institutionalized racism and discrimination. The chapter is essential to understand how oppression is deeply embedded in American society, institutions, and the police. This issue has not gone completely ignored by this country as shown in the fifth Chapter. This Chapter provides an overview of the attempts, carried out on a local or national level to reckon with the past and offer some recognition and compensation to the victims of crimes perpetrated by the state. The examples given in this chapter are fundamental to inquiry into which instruments of transitional justice might best offer an opportunity to this country to transition towards a more equal and just society drawing. In this regard, the last Chapter starts with the analysis of the recent bill proposals on the establishment of two nationwide truth commissions stemming from the civil unrest following police brutality in 2020 and ends with concluding remarks and considerations on what the US can learn from experiences of transitional justice in the world and what might be the best course of action for such a unique and varied country.