Transitional Justice Symposium: Reflections on the Transitional Moment

[Martin Böhmer is a Professor of Law at the University of Palermo.]

Jacob and the angel wrestling and tying. The intriguing cover of Teitel’s book sets the tone. An extraordinary moment of struggle between two who are bound together (tied, that is) but who cannot trust each other. In Bo Burt’s reading God wants His people to love and worship Him, Jacob (like his father and grandfather) wants Him to fulfill His promise. The tie produces unescapable dialogue.

Transitional Justice (TJ) analyzes such moments, the moments were antagonists find themselves in a tie, in somewhat equal terms. The former powerful side now defeated, the former victim now empowered, none of them able to create a community without the other.

TJ is a meticulous account of an exceptional moment, of exceptional moments compared. The word “extraordinary” is used more than often. The moment is the one mentioned in Schmitt’s “Sovereign is he who decides in the exception”. It can be also the moment of reconfiguration of a whole culture. The political, legal, juridical, social, economic measures (criminal trials, tort law, historical accounts, public law, constitutional adjudication, all very normal, everyday social practices) feel “irregular”, “informal”, exceptional. They are meant to produce a “shift in regimes”, a paradigm shift. Hubert Dreyfus’ Heideggerian approach to this moment describes it as a way for marginal practices to take center stage and former central ones being marginalized. But the new practice is weak in meaning. The Sovereign decides in the exception to reestablish order, reconfiguration only does its job if a new practice finds its place.

TJ beautifully describes the many ways and difficulties these new practices try in order to succeed, and it insists on the term “performative” to describe the function they serve. But as we know since Austin’s doctrine of infelicities, things can go wrong with performatives. The new paradigm can fail in producing new practices, people can reject the new ways: they can reject the obligations they entail, the skills they need to live in the new world, the feelings they have to display towards others, the need to remember some things, the need to forget, the offer of forgiveness, the personal, social or political need to pardon. And if the performative fails, the promise of a new beginning is not fulfilled.

Thus, the phenomenology of transitional periods calls for an articulation of the new practices. The Sovereign decides in the exception to establish or reestablish order. The old language lost its meaning and thus a new language has to be learned for the community to recreate itself as such. When does the transition end?

Take law. Many of the examples described in TJ show a pattern of attempts to get rid of a legal conception regarded as deceivingly formalist, apolitical, one in which laws and the acts of government were not limited by constitutional arrangements or human rights, where the remedies were at best individual, and national decisions unbounded by international agreements.

The transition constitutionalized the legal systems:  law now discusses normative questions, opens itself to other disciplines. The ideology of codification (where there was one) is dead. There is not a single source of law: now laws, but also national, international and even global jurisprudence; the Constitution, its rights and procedures; and international treaties are also claims of authority for the people and particularly for the judiciary. The judicialization of public policies goes hand in hand with an increased access to justice for individuals but also for collectives as new rights, remedies and enforcement mechanisms allows for collective standing to sue (as TJ noted very early in this process). The judiciaries try to find their place in this new polity looking for new theories of legal adjudication and establishing new, more accountable, legal procedures. There is an obvious softening of the old public-private divide that put into question old legal categories without providing clear cut new ones.

The articulation of the new practice calls for an enormous social effort. Constitutions are reformed, new laws are passed, different legal procedures enacted, the training of lawyers and judges are put into question, legal education becomes a surprising issue in the agenda of political reform.

But how to change the ways of the people? how to persuade the ones who benefit with the established arrangements? TJ does not answer these questions. It should not have (it is a description of a singular pattern, not a list of proposals). It could not have (the difficulties of articulation were still in the future in 2000). But let me close with two attitudes that threaten the realization of the promise of transitional justice.

The first one is of course the rejection of the exception. The denial of the extraordinary moment. In transitional criminal trials this attitude is exemplified in the arguments for the defense of those accused of crimes against humanity. Lawyers insist in protecting their clients as if they committed a normal crime in normal times. Retroactivity, personal liability, mens rea, double jeopardy issues are raised to no avail, but with the intention to erode the legitimacy of the transition.

The second one is the instrumentalization of the exceptional moment. It is the rejection of the need of articulation. The rise of populist illiberal movements is sometimes justified or linked to the transition. The Sovereign here does not withdraw, it remains with exceptional powers to intervene whenever it pleases under the pretense of fulfilling the promise of the transition.  The Sovereign has to remain to fight those who oppose it. Unaccountable Presidents with extraordinary powers able to close or control Congress, to create a dependent judiciary or to manipulate the press or social media, or to lie use the reasons for the transition (human rights, independence from foreign rule, national honor) in order to deny its transitional aspect

These two horns of the dilemma delineate the difficulties of politics after TJ. In order to create a democratic polity, respectful of human rights and the rule of law the transitional moment has to be experienced as such. It has to reconfigure our social practices; the exception has to get its due. But then it has to perform successfully, it has to create a new articulation of practices: a new ethos has to be created, new roles have to be assumed, new instruments have to be crafted, new relationships have to be established. If not, the transition either does not happen or is a permanent transition to nowhere.

Teitel’s Transitional Justice shed a bright light on the most fundamental phenomenon of our lifetime. Nevertheless, the challenge that the book entailed to our scholarship, our stations and our political commitments to look beyond that crucial moment is still to be met.