Transitional Justice Symposium: Transitional Justice and Enduring Imagination

[Francisco-José Quintana is a PhD candidate and Gates Cambridge Scholar at the University of Cambridge.]

International law scholarship ages unevenly. It is a rich and —for the willing— diverse field, which makes diving into libraries and archives an exciting journey that might take one to a variety of teachings, preoccupations, approaches, and destinations. We might not, however, find everything quite exciting, and time has been unkind to certain earlier dominant strands — with good reason. For instance, a number of perspectives contemporary to the international legal developments that accompanied the post-1989 rise of liberal internationalism —from the ad-hoc international criminal tribunals to humanitarian intervention— appear superficial and dismissive of particular experiences and necessities — evoking Koskenniemi’s powerful indictment of the “turn to ethics”. It was at this very time, twenty years ago, that Ruti Teitel’s seminal Transitional Justice was first published. This book, however, remains as necessary as when first published.

Among Transitional Justice’s many virtues, I want to focus on one that stands out as a reason to keep returning to the book, even when not working strictly within the field of transitional justice: its call for legal imagination. Teitel’s book examines the legal approaches adopted in 20^th-century transitions to democracy across the world and studies the significance of law for these societies’ liberalising prospects. Transitional Justice opens up space for rethinking the relationship between law and systematic human rights violations, in at least two significant ways, which I will explore further. Teitel offers an account of the role of law in periods of radical change beyond the boundaries of both disciplinary dogmatism and realist accounts that suppose law epiphenomenal. In the process, she engages with insights and arguments from several disciplines and fields of law —from international law to constitutional theory, from political philosophy to historiography— not merely enriching the discussion, but rather demonstrating their importance for legal analysis, without sacrificing attention to legal detail.

Repressive pasts and legal responses

Teitel carefully identifies and explores a number of crucial legal mechanisms employed in transitional periods: criminal justice, historical justice, reparatory justice, administrative justice, and constitutional justice are each the focus of individual chapters. This analysis puts Teitel in a privileged position to address the ubiquitous question of how should states respond to repressive pasts. “There is no single correct response” (p. 219), she forcefully concludes. This is, however, far from an “anything goes”. Against liberal accounts that, building on universalistic conceptions of justice, argue for the necessity of certain responses regardless of the political context, Teitel demonstrates that the conception of justice in transitions is contingent and moulded by prior injustice. At the same time, law is far from irrelevant: legal responses, shaped by the particularities of the legacies of injustice and conditioned by particular tensions, structure the transition, enabling the construction of a new sense of legitimacy.

The case of criminal justice illustrates some of the implications of Transitional Justice’s thesis. Among the actual and potential responses to past violence, punishment has attracted the most attention, arguably due to the demands of idealist liberalism — then (and still) “dominant in international law and politics” (p.4). Consider the case of Argentina. In Radical Evil on Trial (1996), his first-hand analysis of the Argentine transition, Carlos Nino, the prominent Argentine jurist who had served as advisor to President Raúl Alfonsín, expressed some frustration at certain foreign scholars’ treatment of the Argentine experience. Nino had played a decisive role in the development of Alfonsín’s human rights policy, which had led, in his words, to one of the “few instances in world history […] of prosecuting those responsible for human rights violations” (Nino, p. 186). He defended the prosecutions on forward-looking arguments, including the development of a public consciousness about past violence. These had been made possible, however, by a “delicate equilibrium” of several legal and political factors (Nino, p. 186). For Nino, those scholars who argued for a duty to punish human rights violations under international law —notably including Diane Orentlicher— had not paid sufficient attention to the Argentine experience, where an “unqualified and unrelenting international duty” (Nino, p. 187) could have further destabilised the prosecutions.

Transitional Justice stands in contrast to rigid prescriptions such as Orentlicher’s, which do not help us make sense of particular experiences. Teitel’s comparative analysis identifies the “limited criminal sanction” as the most common form of punishment in transitions, grounded not primarily on conventional retributivism, but instead incorporating forward-looking reasons similar to those put forward by Nino. Politics —both the repressive legacy and the context of the transition— shape the limits of what is necessary and what is possible in times of change. Still, even in its most limited form and “often with little or no penalty” (p. 47), Teitel argues, the limited sanction can isolate and disown past wrongdoing, and thus draw a line with the past and instantiate normative change. Significantly, she recognises that even the adoption of amnesties does not “necessarily mean forgetting the underlying past wrongs, as these are often made conditional upon individual case-by-case investigations equivalent to those of a punitive process” (p. 59).

To be sure —and as has been made clear by the more recent rich literature on critical approaches to international criminal law—, there are reasons to be sceptical about the effects of criminal responses, even if limited, to systematic human rights violations. For instance, even the “limited criminal sanction”, persuasively identified by Teitel as characteristic of transitions, might, in certain contexts, promote a problematic individualisation of guilt, obscuring the need for more structural economic and political reform. Still, virtuously, criminal justice is one of the several responses studied by Teitel in her exploration of how law enables the construction of a normative shift. Transitional Justice rejects the necessity of universal or ideal responses. In this way, it continues to enable critical reflection about legal responses to repressive pasts — not least because the rise of anti-impunity means that our world might resemble more Orentlicher’s than Nino’s vision (see also Teitel’s more recent work, offering an insightful analysis of the emergence of the “right to accountability” in international law).

Broadening the terms of the conversation

Transitional Justice has broadened the terms of the discussion on the role of law in transitions — a contribution that goes beyond the parameters of the (central) argument that it presents. Teitel adopts a primarily inductive method, building on her research of transitions in Africa, East and Central Europe, and Latin America, and incorporating insights, borrowing language from, and discussing with analytical and Continental philosophers, political scientists, historians, and jurists. Her comparative and interdisciplinary approach expands the range of experiences and aspects that have to be taken into account by legal analyses about how to deal with past violence.

For instance, Teitel’s chapter on historical justice features an important analysis of knowledge production in transitions. Notably, Teitel rejects the influential view that “establishing the ‘truth’ about the state’s past wrongs […] can serve to lay the foundation of the new political order” (p. 69). Her analysis shows that every legal practice characteristic of transitional moments contributes to produce a historical account, yet she emphasises that these will not constitute objective truths from which to draw single clear lessons, for the simple reason that “modern historiography affirms the inescapably politicized nature of the act of writing history” (p. 117). However, in line with her analysis of criminal responses, she argues that transitional inquires might produce not final but “marginal truths” that “may be all that is needed to draw a line on the prior regime” in periods of change (p. 218), and which will themselves ultimately be subverted through the regular operation of liberal politics. One could object that certain transitional justice mechanisms have in fact produced problematic narratives that have been very difficult to disrupt. The forthcoming work of Marina Veličković, for example, shows how the ICTY has produced partial, ethnicised and gendered narratives about the periphery while side-lining voices from the periphery, normalising their silence. My point here is, however, that Teitel’s sophisticated analysis foregrounds the importance of knowledge production in the transitional context, significantly enriching the discussion — and facilitating the articulation of these very critiques.

Past and present

Twenty years after its publication, Transitional Justice has become an essential part of the canon of transitional justice. In the meantime, significant challenges have been put forward emphasising the canon’s exclusions; most notably, its lack of attention to questions of economic inequality and redistribution (among others, the important work of Zinaida Miller and Marcos Zunino comes to mind). Teitel discusses matters of distributive justice, particularly in her enlightening analysis of reparatory justice (ch. 4) and administrative justice (see, especially, pp. 169-70). However, recent political and economic developments, including in the Latin American societies which transitional justice has studied so much, further illustrate the need of a more substantive discussion about the persistent deferral of significant redistribution. This is an ongoing, if urgent, task — and a good course of academic discussion. This discussion —as well as research on human rights, international law, and constitutional law, in general— will continue to benefit from the canonical yet undogmatic Transitional Justice. Through time, Teitel’s ground-breaking book stands as an inspiring, rare model for an empathic and rigorous, critical and normative, interdisciplinary and legally sound approach to some of the toughest questions.