Transitional Justice Symposium: An Introduction

[Ruti Teitel is the Ernst C. Stiefel Professor of Comparative Law, New York Law School; and a Visiting Fellow, London School of Economics and the author of Transitional Justice (OUP, 2000).]

As one enters the main building of Humboldt University in Berlin, one finds a famed quotation from Karl Marx, which has survived the post-Communist transition: “The philosophers have only interpreted the world, in various ways. The point, however, is to change it”.

Contra Marx, I wrote my book Transitional Justice very much as an interpretation of the world – as it was changing in the 90s. But interpretation can be itself a way of changing the world, as another German thinker, Hans-Georg Gadamer has taught us.

In Transitional Justice I emphasize the importance of context to transition, and thus it might be appropriate to lead off this symposium with some context about the book itself. Thirty years ago now, I began writing on the subject during the heyday of political transition; the end of the Cold War and its related proxy battles around the world. Also. during the period in which I was conceiving and researching the book, South Africa had its democratic transition, ending Apartheid, and military dictatorships fell in other parts of the world, giving rise to fledgling democracies. There was a diversity of transitions and this diversity was as striking as the common demands or exigencies of justice in transitional situations. Experiments were undertaken with many different methods of transitional justice, with no overarching presumption, for instance in favor of criminal trials, or of truth commissions. Lustration and restitution of property were aspects of transitional justice in some political contexts but not others. There was a sense of multiple national experiments occurring more or less simultaneously but with some degree of mutual influence. In this atmosphere of experiment, taking a comparative and contextual approach seemed entirely natural.

At a personal level, my preoccupation with political transition and the issues of justice it raises began with my home country of Argentina, refuge for my parents and extended family from postwar Europe. I had stayed away during much of the period of military rule save for quick visits to see family, but was excited by the democratic election of Raoul Alfonsin, demarcating the demise of the junta. So it was that in 1990 as a young human rights lawyer in New York, following the situation in Argentina, I was asked by the Council on Foreign Relations to write a backgrounder about the new democracies emerging in the Southern Cone: “How are the New Democracies of the Southern Cone dealing with the Legacy of Past Human Rights Abuses”? In the end the CFR meeting turned into a debate about “punishment versus impunity” the latter a new word at the time.

Even then what was clear what was that there were serious questions about legality and rule of law that could hardly be raised fully let alone tackled in a summary memorandum of fewer than a dozen pages. Already it became apparent that the challenge of a compromised judiciary and inadequate procedures were leading to calls for amnesties that might be said to compromise the ideal of justice itself. In some cases, like that of South Africa, the rejection of retribution brought forth a promising process for reconciliation, where amnesties were combined with disclosure of past wrongdoing, and the Truth Commission was complemented by a broadly inclusive constitutional reform process.

The adoption of the expression “transitional justice” to denote the broad challenge of justice in situations of political transition and the multiplicity of approaches and methods just noted occurred through my proposal in a 1991 United States Institute of Peace grant to do research and write about the period in question: “transitional justice: a bridge between regimes.” For me the expression did not mean the application of any pre-existing theory of justice to political transition nor on the other hand a self-standing theory of justice itself. Rather what I sought to capture-and yes, interpret-was how justice is relativized or modified by the demands of political transition, without however thereby disappearing or ceasing to be recognizable to values of legality. Soon thereafter I published Transitional Jurisprudence: The Role of Law in Political Transformation in connection with teaching drafts of the book at Yale, where I was at the time as an Orville Schell Fellow. A number of the students in my seminar would go on to do their own original scholarship and/or practice in the field of transitional justice, e.g. Beth Van Schaack.

Today, thirty years after the end of the Cold War we see the debates about transitional justice being reshaped in light of developments such as the human rights backlash, as well as newfound controversies about international criminal prosecutions. These current debates reflect the dangers of disconnecting justice from context and politics or approaching transitional justice as a universal formula or toolbox to be imposed regardless of the demands of time and place.

Whereas, in my book I endeavored to emphasize the importance of context in the limits of criminal justice as transitional justice. Indeed, at the time I saw the rule of law issues involved in attempting criminal justice when there were compromised procedures, or illegitimate institutions or processes – often associated to where the state itself is the perpetrator which is often the case in these periods following political repression. What we see in this ”global” phase of transitional justice is precisely the danger of disconnecting justice from context and politics.

The recurring debate about politics and legality in transitional justice may well be in the spirit in which I wrote the book that is the subject of this symposium. It is also the spirit in which many generations of scholars are working all over the world on these critical questions from whom I will be honored to hear in the coming week.