What religion brings to the politics of transitional justice.

• Author: Philpott, Daniel
• Position: ESSAYS

The past generation might well come to be called "the age of transitional justice. (1) Over forty transitions from authoritarianism to democracy since 1974 and a historically dense spate of civil war settlements since the end of the Cold War have begotten worldwide efforts to "deal with the past," to use a phrase prevalent in Northern Ireland. (2) These include over thirty truth commissions, national trials, two international tribunals and now an International Criminal Court, reparations schemes, an outbreak of apologies (such as President Bill Clinton's for not intervening in Rwanda), dramatic instances of forgiveness, memorials, museums, commemorations, ceremonies and scores of forums, seminars and initiatives conducted by non-governmental organizations (NGOs) and other civil society groups. Underappreciated in academic analyses, though sometimes generating a buzz in the popular media, is the role of the religious in these doings. The purple robes and pectoral cross that Anglican Archbishop Desmond Tutu wore as he presided over hearings of South Africa's Truth and Reconciliation Commission, projected across continents by CNN and BBC, now adhere indelibly to popular images of truth commissions. In Guatemala, another bishop, this one Catholic, lobbied for, organized and carried out an entire truth commission--and was assassinated for it. Pastors and priests, imams and rabbis have organized efforts to heal the wounds of past injustices in villages, cities and their own religious communities. None of this is surprising in light of another global trend that academics have been slow to recognize but that also resounds in headlines: the rise of religion as a political force. (3)

Should scholars of transitional justice, then, remedially append religion to a long list of actors involved in transitional justice, one that includes victims, officials of the outgoing regime, citizens at large, states, outside states, political parties, international organizations, NGOs and the like? No, religion's role is far more significant. The debates surrounding transitional justice have yielded paradigms--sets of kindred ideas, drawn from intellectual and cultural traditions--that set forth alternative approaches to dealing with the past. One of these paradigms arises from a group of theologians, religious scholars and religious activists that are largely Jewish, Christian and Muslim. It may be called reconciliation. In its core ideas, reconciliation differs from the paradigm from which most human rights activists and international lawyers look at the past, one that may be called the liberal human rights paradigm. An investigation of the emergent religious paradigm of reconciliation promises a revised map of today's debates over transitional justice, a better understanding of how this paradigm shapes how societies conduct transitional justice and more careful reflection upon this paradigm's potential for restoring sundered societies. Such an investigation, at least a brief one, is what this essay pursues.

But first, what is transitional justice? Both words in the term have become increasingly wide in their meaning. Transitional efforts to deal with the injustices of an authoritarian regime or a war can take place long after the immediate transition to democracy or a peace settlement. Among many other examples, in 2000, the German government agreed to major reparations for victims of forced labor during the Holocaust. Sometimes efforts to deal with the past take place during transitions that are staggered, shaky and incomplete or involve an end to fighting but no change in regime, as in Guatemala and El Salvador in the 1990s. The same breadth applies to justice. During Latin America's wave of transitions to democracy in the 1980s--the events that launched the current field of transitional justice what human rights activists meant by transitional justice was the question of whether deposed dictators would face trial or receive blanket amnesty. Today, though, transitional justice can mean also truth commissions as well as the entire portfolio of measures that address the wounds of past political injustice. Yet, transitional justice would lose all distinct meaning were it to encompass all making and building of peace. Mediation efforts and most economic development initiatives are not transitional justice. We can best think of transitional justice, then, as the sum total of activities through which states and citizens redress past political injustices--deeds that are no longer occurring but whose wounds may still be fresh, as if they had happened yesterday--in order to restore political order in the present and for the future.

TWO PARADIGMS

Philosopher Alasdair MacIntyre is famous for demonstrating the importance of tradition--"an historically extended, socially embodied argument"--in moral and political reasoning. (4) Hardly exempt from tradition are those who deliberate about injustices of the past.

They too, draw upon, develop and adapt arguments that previous philosophers have proffered and that communities of the like-minded have since perpetuated. The two paradigms into which today's deliberators divide themselves each draw predominantly from certain traditions. The liberal human rights paradigm roots its approach in the Enlightenment and its intellectual legacy. The reconciliation paradigm is heavily influenced by the Abrahamic religious traditions, Judaism, Christianity and Islam, whose contemporary theorists and practitioners of transitional justice voice strikingly common ideas, though each of them derived from their own tradition's claims, texts and centuries of argument. (5) These categories are not absolutely distinct. Religious thinkers and practitioners often draw upon ideas from the liberal human rights tradition, while reconciliation has its secular supporters. Still, each paradigm contains a distinct center of gravity, certain core ideas rooted in certain traditions around which its members converge.

Perpetrators ought to be punished and victims vindicated--so can be summarized the core commitments of the liberal human rights tradition, the approach to transitional justice voiced most commonly by human rights activists, international lawyers, United Nations officials, several NGOs who support transitional justice and many scholars. (6) The paradigm is a close cousin of the liberal peacebuilding consensus, an approach to the broader project of reconstructing post-conflict societies that stresses human rights, democracy and free markets; this idea is also widely shared among leading global institutions including the United Nations, the World Bank, donor agencies and NGOs. (7) Both paradigms find common intellectual progenitors in John Locke, Immanuel Kant, John Stuart Mill and John Rawls, and seek to preserve and advance their classic thinking on liberty, equality, open economies and a just distribution of wealth, as well as on punishment. The liberal human rights paradigm is part retributivist--as Kant was, insisting that dictators and their minions receive the punishment that they deserve, and part consequentialist--stressing the value of punishment for deterrence of future crimes and for establishing new political orders on the basis of the rule of law. The gradual but cumulatively successful prosecution of Chilean generals during the 1990s and 2000s, other successful prosecutions through national courts, the establishment of international tribunals in Yugoslavia and Rwanda and, ultimately, a permanent International Criminal Court and reparations settlements--such are the triumphs that the tradition extols. Former president of Argentina Carlos Menem's pardon of convicted generals of the Dirty War period, the blanket amnesties common to the Latin American transitions of the 1980s and all failures of accountability elicit the strongest objections to the tradition of reconciliation. Its focus on trials does not necessitate its rejection of truth commissions, which expose political crimes, affirm victims' dignity and have been conducted compatibly with trials in places like Timor-Leste and Sierra Leone. (8) The tradition insists that truth commissions must not sacrifice accountability,.

The liberal human rights paradigm does not shun religion summarily. Human rights activists have worked closely with religious leaders and communities for accountability in Chile, Brazil, Timor-Leste, post-Communist Germany and elsewhere. However, leading intellectuals in the liberal human rights school have called into question core features of religious arguments for reconciliation. At times, the religious have linked reconciliation with amnesty or reductions in punishment. Tutu, for instance, defended the conditional amnesty of South Africa's Truth and Reconciliation Commission not only as a pragmatic alternative to civil war, but also as an element of an altogether different form of justice from retributivism--restorative justice. (9) Liberal human rights voices are skeptical. Abrogating punishment, they argue, is always a sacrifice of justice, ought never to be reenvisioned as justice and should be permitted only when demonstrably necessary for peace or democracy. (10) They are also skeptical that goals of religious reconciliation like healing, overcoming enmity and forgiveness are achievable or even morally appropriate in politics, for they violate individual autonomy, disrespect liberalism's plurality of values and undermine central democratic virtues of argument and deliberation. (11) Finally, intellectuals of the liberal human rights paradigm are chary of religious language in the politics of transitional justice, holding to some version of philosopher John Rawls's argument that political arguments, at least in constitutional matters, ought to be expressed in secular or public language. (12)

If representatives of the liberal human rights paradigm criticize religiously-based arguments for reconciliation, neither is...