Transitional Justice: A Concept with Various Facets (original) (raw)
Related papers
C.Corradetti, N.Eisikovits, J.Rotondi (eds.) Theorizing Transitional Justice
Ashgate, Farnham, UK
The philosophical debate over transitional justice as a concept can be traced back to ancient Greece. Some of its most central problems were already addressed in Aeschylus’s trilogy of The Oresteia where Athena played the transitional role of casting the decisive vote for pardoning Orestes and saving him from the Furies (the Erinnyes).1 Yet, the linguistic expression “transitional justice” has been adopted for the first time in its technical sense by R. Teitel during late 1980s who then formulated the basic principles of this emerging discipline in her path-breaking work on the subject.2 Since its appearance, the term was immediately discussed and criticized due to its combination of two apparently irreconcilable elements: the idea of justice and the idea of change through time — transition. The skepticism accompanying the birth of transitional justice as a field of study was thus characterized since the beginning by a continuous attempt of defining the field, an attempt which is even now far from having been completed.3 Some views have challenged the notion of transitional justice as a form of compromise among contracting parties whereas others have instead considered it as a specific context of application of general normative principles independently justified (hence the proper interpretation of “transitional”).4 The specific task for a normatively framed programme of justice in transition is the focus of some of the most influential literature in the field as, for instance, in R. Teitel (2003), where the author considers how twentieth-century institutional and legal developments of transitional justice revolved around three major historical events/phases: I) the post-Second World phase of the Nuremberg Trials prosecuting Nazis’ generals, II) the post-Cold War phase which has modified the bipolar equilibrium and opened democratization processes, and finally, III) the steady-state phase of transitional justice
Transitional justice is becoming more and more an interdisciplinary field of study with interesting developments, not only in the assessment of a wide number of casestudies, but also in the evaluation of increasingly more articulated theoretical problems. Undoubtedly, a robust collection of literature has now accumulated also on the more theoretically-oriented side. The present essay, far from aiming at an exhaustive reconstruction of the existing literature, is structured around some conceptual issues that consider the convergence of philosophical, legal and political aspects of transitional phenomena.
The Coherence and Utility of the Notion of Transitional Justice
Sometimes, Transitional Justice as a field raises high expectations regarding its potential influence on the state of democracy and adherence to the rule of law in countries in transition. The failure to achieve these expectations, as experiences of different countries show; the definition of transition itself; and the divergent understanding of the notion of transitional justice by various actors might make us question the coherence and utility of this field. This paper discusses the notion of transitional justice in light of the Egyptian revolution that erupted on the 25th of January 2011. Part I will examine the debate around the consistency and usefulness of transitional justice as a field, arguing that it is a distinctive field concerned with providing societies that witness political flux with extraordinary justice, exceeding concepts and mechanisms of justice applied during normal times. Part II critiques different responses of the Egyptian government and civil society following the 25th of January Revolution to the need to achieve justice after decades of widespread and systematic violations of human rights. It will discuss how these responses perceived the idea of transitional justice, and argue that transitional justice should not be merely seen as an action plan. Part III considers how transitional justice constituted an inspirational element used by the democratic movement and civil society in Egypt. It looks at the way this field influenced the thinking of the movement in terms of compliance to international human rights values, by refusing any form of retribution, creating the precedent of holding regime figures accountable and drawing lessons from other countries that witnessed social transition. A conclusion will follow.
Theorizing Transitional Justice
Early literature in the field of transitional justice was dominated by debates over the meaning of justice, with retributivists arguing for the need for criminal prosecutions following mass human rights violations and advocates of restorative justice claiming that non-prosecutorial forms of justice like truth-telling are better suited for post-conflict societies. This debate was eventually settled, at least in the field, by a belief that post-conflict societies require both criminal prosecutions and truth-telling. More recently, the debate over justice has centred on the question of whether the field and practice of transitional justice has prioritized civil and political rights over economic and social rights. While this is a significant development in the field, it points to a more fundamental reality. Debates over justice are interminable. To try to sculpt justice to fit a preconceived definition limits its capacity to respond to the needs of survivors. This realization serves as the starting point for this project-that justice must remain open to re-interpretation for it to maintain its relevance in post-conflict societies. There is, however, a central problem in the field: Transitional justice implies a justice that is in the service of the transition. What this suggests, then, is that the debates over justice, or, the justice question, have been substantially circumscribed by the transition question, thereby limiting the possible definitions of justice. While the justice question has received a great deal of attention, this project suggests that if debates over justice are to indeed remain interminable, the more fundamental concern of the field should be the way the transition question has, in fact, shaped our theorizing about justice.
The Role of the Institutions in the Transitional Justice Mechanism (Essay, University of Pavia0
In this essay, We propose a defense of transitional justice thought from holistic and moral perspectives. I will argue that it is first and foremost the institutions, not the individuals that bear the burden of the virtues to a political transition. To begin with, We will summarize first the most frequent and most representative criticisms of transitional justice theory. In my opinion, these criticisms relate essentially to the general nature of the transitional processes, a conceptual vagueness that would be aggravated by the moral pretensions of the latter. In contrast to the criticisms, We want to defend the normative dimension of transitional justice by attributing to the institutions, the moral virtues of the transitional mechanisms. In order to do that, I shall then attempt to explain this thesis by commenting on the three virtues of the institutions, namely the egalitarian virtue, the virtue of confidence, and the deliberative one. We will conclude with an analysis of what the objective of political reconciliation might mean according to this logic of the virtues associated with the institutions. One of the most widely discussed and arguable criticisms of theories of transitional justice is that they are inadequate to account for the complexity of practical issues in the postwar context or a democratic transition following long years of dictatorship and authoritarian regimes. This is the main reason why, organizations devoted to transitional justice are in general suspicious of any attempt to think in a unified way and look at the various problems of political transition. There is, however, no reason to reduce the theoretical stakes of the transition to platitudes subject of the pragmatism and the modalities of each circumstance. In many fundamental issues, it is possible to analyze a set of general normative principles, which are valid for the majority of cases, of figures and possess real utility on the ground. H