Transitional Justice Symposium: Giving Politics Its Due–Late Reflections on Ruti Teitel’s Transitional Justice

[Frank Haldemann is Co-Director of the Master of Advanced Studies in Transitional Justice, Human Rights and the Rule of Law at the Geneva Academy of International Humanitarian Law and Human Rights.]

I first met Ruti in 2006, when I was a Hauser Global Research Fellow at the New York University of Law. For many of us working on transitional justice in these still early days, Ruti’s book Transitional Justice represented the ultimate reference point for any serious discussion about the topic. I was of course thrilled when she kindly accepted to comment on a paper I was going to present at the Global Fellows Forum. The paper, which dealt with normative issues related to transitional justice, was still in a very rough and early stage (and, to be honest, never made it beyond), but Ruti patiently engaged with it and enthusiastically pointed to a number of angles and topics to be further explored. But if there was a topic that took centre-stage in her comments, it was the question of politics. What is the relation, Ruti asked, between normative goals of justice, reconciliation, truth and so on and the messy world of politics?

At the time that question was, admittedly, far from my mind. Influenced by David Crocker’s work, I had put all my intellectual energy into exploring a normative framework for transitional justice. My concern, in those days, was squarely with ‘what ought to be’, with the ideals in whose light transitional policies and practices should be judged. My reading of Ruti’s 2000 book was, accordingly, narrow and limited – focused primarily on jurisprudential debates on the nature of law and the question of ‘legalised injustice’. I should have known better of course: Ruti made it very clear in her book that the ‘transitional rule of law’ is best understood, not as ‘a source of ideal norms in the abstract’, but rather ‘as politically and historically contingent and elaborated in response to past political repression often perpetuated under the law’ (p. 7).

Over the years, I have come to increasingly appreciate Ruti’s point about the need to think more carefully about the relation between transitional justice norms and politics. Since the publication of Transitional Justice 20 years ago, the field of transitional justice has moved in a different direction, however. As the field became increasingly institutionalised and mainstreamed, a narrowly normative, legalistic and apolitical – even anti-political – understanding of transitional justice emerged as the dominant model of transitional justice (widely adopted not only by scholars and IGOs, such as the UN and the EU, but also by influential NGOs such as the International Centre for Transitional Justice).

Several developments have contributed to this ‘normative turn in transitional justice’. At the level of the United Nations, the Principles to Combat Impunity – updated by Diane Orentlicher in 2005 – have surely played a significant role in shaping transitional justice discourses and policies. These principles treat anti-impunity and transitional justice issues exclusively as human rights obligations giving rise to four groups of victims’ rights (to justice, truth, reparation and guarantees of non-recurrence). This four-pillar framework has been decisive in shaping the mandate of the UN Special Rapporteur in the area of transitional justice that was created in in 2011 (‘Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence). But it is Pablo de Greiff, the former ICTJ head of research and UN Special Rapporteur, who has probably done more than anyone to intellectually consolidate it by offering an ambitious ‘normative theoretical conception of transitional justice’. On this conception, transitional justice is best seen as a coherent ‘whole’, a comprehensive normative system, in which the various ends (recognition, trust, reconciliation, democracy) and means to realise them can harmoniously co-exist and mutually reinforce one another.

There is surely much to be said in favour of such normative approaches and frameworks. They provide an emancipatory vocabulary of justice and entitlement for victims of human rights abuse and, thus, set a critical standard by which transitional processes can be judged. An essential part of transitional justice should be to have a serious conversation about how previous injustices can be ‘repaired’ and oppressive structures removed and transformed. And current discussions and normative frameworks surely provide useful elements for such a conversation. Moreover, such normative categories and vocabularies are critical in giving meaning and direction to a society’s collective effort at making ‘a new beginning’. As social critic and historian Russell Jacoby puts it: ‘We need to keep an eye on what is under foot, but also what is on the horizon’ (178).

The problem lies elsewhere: in a tendency to operate at a level so abstract and idealised, so detached from the political world as it is, that one’s theory has little – if anything – to say that is practically relevant. Trapped in what C.A.J. Coady calls ‘moralism of abstraction’ (39), mainstream transitional justice discourse ignores at its own peril the messy political realities – imbalances of power, lack of resources, weak institutions etc. – that condition and constrain transitional processes. Part of the problem is that the dominant ‘script’ has little to say about how the principles it advocates are to be become actually operative – about how societies go from where they are to where they ought to be. Effecting radical and durable political change is rarely, if ever, a tabula rasa matter. Rather, most of the time, it is itself an inherently political matter involving practices such as settlements, bargaining, compromise, give and take, cobbling together and so on. One might reasonably expect a theory of transitional justice to have something to say about such issues, but mainstream approaches remain typically silent about them (it bears perhaps noting, in passing, that the so-called ‘transformative transitional justice’ literature may not fare any better in this respect, as Pádraig McAuliffe has argued).

In a sense, this critique is not particularly novel of course. It largely echoes the recent critique of political realists (including John Horton, Bernard Williams, Bonnie Honig and Chantal Mouffe), who have been accusing ‘ideal theories’ – exemplified by John Rawls and Jürgen Habermas – of evading, escaping or displacing politics. The ‘normative turn’ in transitional justice was not an inevitability, however. As Paige Arthur noted in a pathbreaking 2009 article, the emergence in the late 1980s of a field called ‘transitional justice’ was largely marked by the challenge of balancing legitimate demands for justice with equally legitimate demands for stability and social peace. In its early days, the field was characterised by controversial exchanges between (what we may refer to as) ‘realists’ and ‘idealists’ debating the relation between human rights obligations and political constraints. On the realist side, thinkers such as Carlos Nino, José Zalaquett and Jaime Malamud Goti took issue with what they saw as a an overly legalistic, idealized account of transitional justice. As actors directly engaged in transitional processes in Latin America, these thinkers took, as Nino powerfully put it, ‘a view from the trenches’, critically sensitive to the realities of power ‘on the ground’. For them, what Max Weber famously called an ‘ethics of responsibility’ – concerned with the consequences of political actions – was a crucial element of the real politics of transitional justice.

Teitel’s work – and particularly the book to which this symposium is dedicated – belongs, I would argue, to this (sometimes forgotten) intellectual tradition. While firmly committed to ideals of justice and legality, Ruti’s work is characterised by a sense of political realism that unambiguously recognises and critically engages with the role of politics in constraining, enabling and shaping transitional processes. It seems appropriate to me to describe Teitel’s approach to politics and law as somehow situated at mid-way between Plato’s cave and the philosopher’s mountaintop. One way to approach theory – perhaps the original way – may be, as Michael Walzer once put it, ‘to walk out of the cave, leave the city, climb the mountain, fashion for oneself (what can never be fashioned for ordinary men and women) an objective and universal standpoint’ (xiv). In contrast to such an enterprise, Teitel means to keep at least one foot in the cave, on the ground, always concerned with not losing touch with the everyday terrain and real politics.

What prevailed, in the end, was a view from the mountaintop – a view of transitional justice as a legalistic and universalist anti-impunity framework neatly structured around human rights norms and obligations. Over the years, transitional justice theory has moved closer to what Judith Shklar powerfully described as ‘the extremity of rule-orienting thinking’ (viii), the sort of ‘legalistic morality’ that is ‘totally divorced from all the contingencies of historical actuality’ (35). As Shklar herself acknowledged, there is nothing inherently absurd about the search for abstract rules, impartiality and formal clarity. But when turned into a belief system, an ideology, a legalistic way of coping with transitional justice may easily become a hindrance to understanding and constructively engaging with transitional justice as a real-world practice that operates not above politics but in its very midst.

This may not be the last word, however. Recent years have seen a growing conversation about what it might mean for transitional justice theory to be more ‘realistic’ – more in touch with the political world as it is – while, at the same time, holding onto basic principles of justice and political decency. An essential part of this conversation (joined by scholars such as Christine Bell, Dustin Sharp, Fionnuala Ní Aoláin, Mahmood Mamdami and Pádraig McAuliffe ) is about questions we often prefer not to raise – questions about the role of power and untidy political transactions in shaping transitions. I see this ongoing, open-ended conversation as an opportunity – an opportunity to loosen the very conceptual straight-jacket that has for too long stifled serious thinking about the real politics of transitional justice.

20 years ago, Ruti Teitel described transitional justice as a project of ‘bounded justice’ – limited and partial, normative without illusions, ‘yet nurturing some small hope of amelioration’ (230). This vision, realistic yet hopeful, remains as pertinent now as it was then.