What's so special about transitional justice? Prolegomenon for an excuse-centered approach to transitional justice.

Author:Gray, David C.
Position:New Voices: Perspectives on Transitional Justice, Postconflict Societies and Human Rights - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law

"Transitional justice" asks what successor regimes, committed to human rights and the rule of law, can and should do to seek justice for widespread and institutional atrocities perpetrated by and under their predecessors. Although the challenges of transitional justice are not new, (1) the subject has come to the fore with the rise of an international human rights culture and the decline of Apartheid, colonialism, and communist autocracy. The fundamental challenge for transitional regimes is a disparity between needs and resources. In addition to justice, new governments must ensure the peace, achieve stability, reform public institutions, repair infrastructure, and institutionalize commitments to human rights and the rule of law. These demands are extraordinary and, even with aid from friendly states and international institutions, all transitions must make difficult decisions. Some of the most troubling are presented by justice initiatives.

The understandable instinct in the face of mass violence is to prosecute everyone responsible. Unfortunately, this is almost always impossible. Atrocities on a scale that calls for transition require the participation and complicity of tens, and often hundreds, of thousands of individuals, agencies, and corporations. The resources--material, human, institutional, and political--needed to prosecute all candidates far exceed those available to transitional regimes and must compete with efforts to achieve other transitional goals, including stability and security. Confronted with this reality, most transitions pursue hybrid approaches to justice composed of limited prosecutions, amnesties, truth commissions, institutional reform, reparations, vetting, and reconciliation. These efforts are notoriously ad hoc, however, leaving transitions with the sense that they are settling for the best possible justice, all things considered.

Although hybrid programs, and particularly truth commissions, have been celebrated in transitions from South Africa to Peru, they are pursued in the shadow of prosecutions, leaving supporters to regret justice lost. In an effort to quiet these sighs and defend against critics much of the transitional justice literature is dedicated to elaborating gap-filling theories, such as restorative justice. These efforts have been the target of numerous critiques, but the most probing argue that there is nothing extraordinary about transitional justice. (2) That is, although the challenges to justice in transitions are more severe than those found in stable states, they have the same fundamental character, so there is no need to construct unique theories of transitional justice. Rather, theorists and practitioners should consult the lessons of ordinary justice and accept the burdens of inevitable imperfection. (3)

Reference to the travails of ordinary...

To continue reading