Bipartisan cooperation as vital for effective transitional justice in the US, By Tadesse Metekia & John Ikubaje

U.S. President, Joe Biden (Photo Credit: CBC.ca)

No other country has pursued transitional justice because it is easy. In crafting a uniquely American approach, the US can glean valuable insights from the wealth of experiences in Africa and other regions it has long supported.

The US can draw insights from Africa and other regions to transform its fragmented efforts into a national transitional justice process.

On 25 October, United States (US) President Joe Biden issued a historic apology to the Native American community for the 150-year-old Indian boarding school policy, which systematically removed and abused Native American children. While the timing of the apology – just 10 days before the general election – was among the concerns raised, 2024 has seen significant developments in transitional justice in the US.

In April, the State Department launched the inaugural International Visitor Leadership Program on transitional justice in Africa and the US. The programme aims to learn from African models while advancing context-specific approaches in the US. In July, the Department of the Interior released its investigative report under the Federal Indian Boarding School Initiative, which recommended the president’s apology.

Earlier in October, the US Department of Justice announced plans to investigate the 1921 Tulsa Race Massacre in Oklahoma. This landmark initiative may not lead to prosecutions, but marks the first federal inquiry into the event.

These developments are significant for two interrelated reasons. First, they indicate that transitional justice is gradually gaining recognition as a means of addressing historical injustices committed in the US. The country has long championed these initiatives abroad and contributed to the global fight against impunity by preventing war criminals and human rights violators from finding refuge in the US.

In contrast to its foreign policy, which actively supports transitional justice abroad, the US has struggled to fully embrace similar processes for dealing with historical abuses at home. These include slavery, which UN Secretary-General António Guterres called ‘humanity at its worst.’ Various racial justice programmes have not succeeded in ending the violence that persists.

Compared to many other established democracies, the US seems to lag in tackling its troubled past. The president’s boarding school apology came nearly two decades after Canada’s apology and establishment of a Truth and Reconciliation Commission for similar injustices. On the Legacy of Violence Index developed by Harvard University and the University of Toronto, the US ranks 78^th out of 174 for human rights violations since 1949.

The second reason that recent developments are significant is that they signal the emergence of federal or national engagement in a country that has relegated transitional justice to micro and local-level efforts.

Even though grassroots US programmes appear more substantial than in regions like Africa, where resource scarcity and restrictive civic spaces impede progress, transitional justice in America remains fragile. Without federal support, these efforts lack the stability and resources to sustain long-term change and achieve broad impact.

A 2023 Howard University School of Law report reveals that approximately 90 per cent of transitional justice initiatives in the US are non-federal, spearheaded by grassroots organisations or local and state governments (Chart 1). Notably, only a fraction – about eight out of 84 initiatives in the report – have involved national-level participation, and half lack concrete legislative backing (Chart 2).

The lack of political consensus is a key factor contributing to this fragmented approach. Federal initiatives such as H.R.40 – a bill proposing a study on reparations for African Americans – are struggling to gain traction in Congress.

There have been successful federal reparation efforts, such as those involving the internment of Japanese Americans during World War II, which also secured a national apology. But national truth-seeking and reconciliation efforts remain underdeveloped.

Furthermore, US transitional justice initiatives are concentrated in Democratic-leaning states or municipalities, highlighting the ideological divides that impede the development of a cohesive, nationwide policy.

Nevertheless, grassroots efforts have shown significant achievements regarding reparations, memorialisation and documentation of historical injustice. Legacy Sites in Montgomery, Alabama, are notable examples of memorialisation and documentation. Also, the increasing number of micro, municipal and state-level initiatives presents a valuable opportunity for experimentation and innovation in the US context.

Even though grassroots US programmes appear more substantial than in regions like Africa, where resource scarcity and restrictive civic spaces impede progress, transitional justice in America remains fragile. Without federal support, these efforts lack the stability and resources to sustain long-term change and achieve broad impact.

Indeed, the absence of widespread political and societal support for integrating grassroots initiatives into a national transitional justice framework leaves them vulnerable to rollback or reversal. This is already evident in the passage of several laws across many Republican-leaning states, such as Alabama’s SB129, criticised for undermining diversity, equity and inclusivity initiatives dating back to civil rights movements.

Adopting a national policy that combines reparative, restorative and retributive justice mechanisms requires genuine bipartisan cooperation. As is often the case, this will be a challenging and time-consuming process.

The lack of a comprehensive national approach has resulted in a selective focus on certain elements like reparations, while other critical components – such as truth-seeking, criminal accountability and institutional reform – remain underdeveloped.

This contradicts international standards outlined by the UN and African Union and doesn’t align with the US State Department’s guiding principles. These principles call for a context-specific, holistic strategy that integrates and sequences various pillars of transitional justice.

The selective approach is further reflected in the limited focus on reconciliation as a process and goal for dealing with the past. Global experiences have shown that reconciliation shouldn’t be forced, but this does not imply that efforts should be passive. Instead, a structured and rigorous approach is crucial to making reconciliation both viable and attainable.

Even in the area of reparations – where the US has shown some attention – grassroots initiatives, though vital, have inherent limitations in addressing the full scope of systemic injustices. This is why municipal resolutions across the country urge the federal government to take responsibility and implement reparations at a national level.

Unlike in Africa and elsewhere, the US has taken steps to deal with historical wrongs through existing judicial processes. A notable recent example is the 2020 Supreme Court decision in McGirt v. Oklahoma, which returned over three million acres of land to the Muscogee (Creek) Nation.

However, the regular legal system is not always equipped to handle the complexities of transitional justice, as seen in June 2024 when the Oklahoma Supreme Court dismissed a lawsuit filed by Tulsa Race Massacre survivors. Unbound by non-retroactivity and statutes of limitation, transitional justice frameworks offer more flexible approaches.

Adopting a national policy that combines reparative, restorative and retributive justice mechanisms requires genuine bipartisan cooperation. As is often the case, this will be a challenging and time-consuming process.

No other country has pursued transitional justice because it is easy. In crafting a uniquely American approach, the US can glean valuable insights from the wealth of experiences in Africa and other regions it has long supported.

Tadesse Simie Metekia is a Senior Researcher, Rule of law, at ISS, Addis Ababa​, while Ikubaje John Gbodi is  Head, Transitional Justice Unit, Department of Political Affairs, Peace and Security, African Union Commission.