The Yale Law Journal

March 2024

Evidence-Based Transitional Justice: Incorporating Public Opinion into the Field, with New Data from Iraq and Ukraine

International LawHuman Rights Law

abstract. The field of “transitional justice” refers to a range of processes and mechanisms for accountability, truth-seeking, and reconciliation that governments and communities pursue in the aftermath of major societal traumas, including civil war, mass atrocities, and authoritarianism. This relatively new field emerged in the 1980s as scholars, practitioners, and policymakers looked for guidance to support post-authoritarian and post-communist transitions to democracy in Eastern Europe and Latin America. Since then, the field has grown rapidly—so rapidly that it is outpacing its capacity to learn from past mistakes. Recent methodological advances in the study of public attitudes about transitional justice through quantitative surveys and qualitative interview methods provide unprecedented insights into how different mechanisms—including domestic and international prosecutions, truth commissions, amnesty laws, and compensation—are perceived by their intended beneficiaries. The results have been troubling. Numerous studies in diverse contexts found that some of the most well-known transitional justice mechanisms, including those employed in South Africa, Rwanda, and Cambodia, failed to achieve their objectives of peacebuilding and reconciliation. In some cases, these policies had harmful consequences for their intended beneficiaries, including retraumatization and perceived “justice gaps” between victims’ preferred remedies and their actual outcomes.

There is an urgent need for the field of transitional justice to learn from this growing body of empirical research to develop evidence-based policies and programs that achieve their intended objectives. This Feature critically reviews the intellectual development of the field, consolidating empirical findings of relevant studies across disciplines—law, political science, sociology, economics, public health, psychology, and anthropology—and identifying open debates and questions for future research. We focus on research about public attitudes toward transitional justice in the communities directly impacted by conflict. In addition to reviewing previous research, we present new data from original public opinion surveys in Iraq and Ukraine relevant to ongoing transitional justice efforts in those countries. We use this evidence to identify lessons learned, including mistakes, in the design and implementation of previous transitional justice processes. We conclude by discussing the normative and prescriptive implications of our findings for efforts to improve future transitional justice laws and policies.

authors. Mara Redlich Revkin is Associate Professor of Law and Political Science, Duke University. Ala Alrababah is Assistant Professor, Department of Social and Political Sciences, Bocconi University. Rachel Myrick is Douglas and Ellen Lowey Assistant Professor of Political Science, Duke University. We thank Emilie Aguirre, Stuart Benjamin, Joseph Blocher, Janka Deli, Michael Frakes, Brandon Garrett, Oona Hathaway, Lisa Kern Griffin, Laurence Helfer, Kristen Kao, Egor Lazarev, Nia Johnson, Mark Fathi Massoud, Noah Marks, Darrell Miller, Jonathan Petkun, Jedediah Purdy, Arti Rai, Judith Resnik, Barak Richman, Richard Schmalbeck, Jonathan Seymour, David Simon, Jeffrey Sonis, Jonathan Wyrtzen, Elisabeth Jean Wood, and participants in the 2023 Conference on Empirical Legal Studies and the Yale MacMillan Political Violence and its Legacies Workshop for constructive comments on earlier drafts; Julie Wooldridge for guidance on the literature-review methodology and Olivia Callan (Duke Law ’25), Robert Cerise (Duke Law ’25), Yechan Choi (Duke Law ’25), Felicia Caten-Raines (Harvard Law ’25), and Olivia Wang (Duke Law ’24) for excellent research assistance; and Alaa Hachem, Christopher D’Urso, Dena Shata, Jordan Kei-Rahn, Sara Méndez, Ryan Lessing, and all the other editors of the Yale Law Journal for excellent suggestions and editorial support.


Transitional justice seeks to bring about social and political change following major episodes of conflict, unrest, or human-rights violations. There are a wide range of transitional justice mechanisms including criminal prosecutions, truth commissions, reparations for victims, amnesties and pardons, and other community-based justice mechanisms. The term “transitional justice” originated in the 1980s, prompted by a wave of democratic transitions in Eastern Europe and Latin America. For its first twenty years, the field was driven largely by theories and assumptions that had not been empirically verified. There was little evidence to guide the design of the first major transitional justice mechanisms, like the International Criminal Tribunal for the Former Yugoslavia (ICTY) established in 1993, the International Criminal Tribunal for Rwanda (ICTR) established in 1994, and South Africa’s Truth and Reconciliation Commission (TRC) established in 1996. Instead, these mechanisms, established in close succession, were described as “experiments,”1 reflecting uncertainty about their prospects for success.

After an initial period of enthusiasm and optimism in the 1990s,2 the field of transitional justice came under scrutiny. Critics identified several systemic problems, including a lack of clarity around key concepts, underdeveloped theories of change, ideological biases reflecting the field’s intellectual domination by scholars and institutions in the United States and Europe, selective support for accountability, a tendency to impose top-down interventions without adequate knowledge of local context, and concerns about the emergence of a “transitional-justice industry” fueled by Western donor countries and private firms whose interests did not always align with the purported beneficiaries of their work.3

A series of review articles starting in 2008 warned that the field was based on little evidence despite the high-stakes—arguably “life or death”4—nature of the transitional justice programs and policies that were implemented for vulnerable populations in some of the most impoverished and war-torn countries in the world.5 These scholars agreed on the need for more empirical research. In response, researchers from several fields, including law, anthropology, sociology, political science, psychology, and public health, used diverse methodological approaches, both qualitative and quantitative, to evaluate how local populations perceived programs and policies “on the ground.”

This new wave of microlevel evidence was discouraging. Many researchers found that transitional justice policies failed to achieve their objectives or—even worse—had unintended harmful consequences. In South Africa, surveys and interviews with victims of apartheid found that many felt betrayed by an unconditional amnesty process that was seen as being too quick to forgive perpetrators without requiring apologies or adequate reparations.6 In Cambodia, the joint United Nations-Cambodian tribunal tasked with prosecuting war crimes committed by the Khmer Rouge convicted only three people after spending nearly $300 million over eleven years.7 The tribunal was further plagued by allegations of corruption.8 A survey of Cambodians found that fifty-three percent would prefer to “spend money on something other than the [tribunal]” and seventy-six percent felt it was “more important to focus on problems Cambodians face in their daily lives than to address crimes committed during the Khmer Rouge regime.”9 Qualitative-interview studies similarly found that many Cambodians viewed the tribunal as out of touch with ordinary people,10 too slow,11 and a disappointment.12

The late 1990s and 2000s witnessed the creation of many other international and hybrid judicial bodies. These included a permanent international atrocities court—the International Criminal Court (ICC)—and ad hoc mechanisms such as the ICTY and ICTR. The perceived failures of many of these mechanisms prompted criticism of “top-down,” state-led justice processes.13 Beginning in the 2000s, a “local turn” in transitional justice fueled an increase in international assistance for customary, traditional, community-based, and other “bottom-up” approaches.14 These included Rwanda’s gacaca courts, which were based on precolonial, customary legal traditions, and the Ugandan Acholi people’s traditional cleansing rituals.15 However, surveys and interviews soon revealed serious concerns with these bottom-up approaches as well. In Rwanda, studies found that the gacaca courts—initially praised by the international community as a promising experiment in community-led justice—were viewed by many Rwandans as a tool for strengthening the government’s authoritarian rule.16 The courts exposed and likely deepened distrust between ethnic groups17 and resulted in retraumatization and stigmatization of victims, particularly female victims of sexual violence who were required to testify publicly.18

In other contexts, including Iraq and Spain, flawed or insufficient transitional justice processes contributed to disillusionment with weak democracies and resulted in “authoritarian nostalgia” for former dictatorships that are remembered, or at least imagined, to have provided more economic and political stability.19 Despite these troubling findings, governments and major international organizations continue to implement many of the same transitional justice programs and policies without incorporating lessons that emerged from surveys, interviews, and other testimony from the intended beneficiaries of these interventions.20

This Feature argues that there is an urgent need for the field of transitional justice to learn from recent methodological advances in the study of public attitudes to develop more evidence-based policies and programs. Research considering public attitudes that is conducted both ethically and rigorously can better achieve transitional justice’s intended objectives, reduce the likelihood of unintended harmful consequences, and improve its perceived legitimacy. In this Feature, we make two primary contributions. First, we conduct a systematic literature review of empirical studies on transitional justice to highlight knowledge gaps and potential biases.21 Systematic literature reviews like ours, as well as “meta-analytic” reviews that reanalyze and summarize data from previous studies,22 are powerful tools that enable scholars to comprehensively map patterns in fields of research using transparent search parameters and coding procedures. These methods are valuable both for synthesizing and visualizing patterns in previous scholarship and discouraging sweeping claims about “the literature” that are often incomplete and biased.23Second, we present evidence from our original studies on public attitudes toward transitional justice in Ukraine and Iraq, two cases that demonstrate the importance of understanding the experiences and preferences of the affected populations. These studies speak to both the opportunities and limitations of public opinion research about transitional justice.

Part I defines transitional justice and briefly summarizes the intellectual development of the field. It describes the most common types of transitional justice mechanisms: criminal prosecutions, reparations and compensation, truth and reconciliation commissions, amnesties and pardons, formal apologies, vetting, and other customary or community-based justice mechanisms.

Part II provides an overview of the empirical turn in transitional justice scholarship, emphasizing trends in public opinion research. In this Part, we conduct a systematic literature review of 329 studies of attitudes toward transitional justice among conflict-affected populations. We focus on attitudinal studies rather than other types of empirical studies (e.g., cross-national datasets and event studies based on archives or local news reports) because the former provide direct evidence of the real-world effects of transitional justice processes on their intended beneficiaries. Our analysis identifies several patterns that are problematic for knowledge production and equity. For one, the field continues to be dominated by scholars and institutions from the United States and Western Europe, while scholars from countries where transitional justice programs tend to be implemented are underrepresented. The literature also focuses on a small number of unique cases like South Africa and Northern Ireland, while cases in the Middle East and Asia are understudied. We also find that criminal prosecutions receive more attention than victim-centered and restorative mechanisms such as compensation, apologies, and dialogues, which may reflect the focus of U.S. and international criminal-law mechanisms on the punishment of perpetrators rather than remedies for victims.

In Part III, based on our review of the existing literature, we identify four recurring debates common to many empirical studies of transitional justice: 1) Who should be responsible for administering justice? 2) What are the limits of reconciliation and forgiveness? 3) How do experiences during conflict, like exposure to violence, affect attitudes towards transitional justice mechanisms? And 4) how does shared identity (e.g., religion, ethnicity, tribe) shape individuals’ willingness to forgive or demands for accountability? The answers to these questions vary widely between studies conducted in different countries and even between studies conducted across different regions or populations within the same country.

Part IV draws on findings from two original public opinion surveys in Ukraine in 201724 and in Iraq between 2018 and 202125 to further explore the key debates identified in Part III. Important differences between these two cases—including in the relationship between personal experiences with wartime harm and attitudes toward peace and justice, as well as differing levels of trust in domestic, international, or customary legal institutions—illustrate the need for highly contextualized legal and policy responses. We discuss how our research may inform ongoing transitional justice efforts in Iraq and Ukraine.

Part V concludes with the normative and prescriptive implications of our findings. We highlight the need for more empirical research to ensure that transitional justice policies and programs are making progress toward their intended objectives and not causing unintended harm. We also call for more support for scholars and research institutions in countries affected by transitional justice processes to address their extreme underrepresentation in the literature as revealed by our meta-analysis. We further describe approaches to incorporate attitudinal data into the design of transitional justice processes in ways that acknowledge the voice and agency of conflict-affected populations, rather than treating them as powerless victims. The ultimate goal of this Feature is to promote evidence-based transitional justice policies and programs that are tailored to local contexts and attentive to the concerns of affected populations and thus more likely to be perceived as legitimate and effective.