Transitional Justice and Judicial Activism Symposium: Closing

[Ruti Teitel is the Ernst C Stiefel Professor of Comparative Law, New York Law School and the author of Globalizing Transitional Justice (OUP paper2015).]

I have learned a great deal from the thoughtful responses to my article (.pdf) by the participants in this symposium. Dinah PoKempner is correct to say that my article doesn’t address the merits of a “right of accountability” as such but rather looks to how the move to judicialization and application of human rights law interacts with political and other domestic processes of transition. She speculates that “the judicial recognition of such duties is unlikely to narrow the ambit of transitional justice.” Clearly more research here is needed to see how these processes interact: one could conclude that it might well engage in constructive way with transition. Dinah concludes that the problem is that there is too little in the way of human rights law associated with the transition, rather than too much. The question here may be less the ambit of the right to accountability in itself than the nature of the remedies that tribunals impose, and their relationship to the domestic processes of transitional justice.

One example, which I discuss in my article is, is Goiburu, where the Inter-American Court required that Paraguay’s create a museum, which would honor the victims of human rights abuses in the conflict of the past. Such a remedy arguably risks preempting truth processes where all sides the conflict have an opportunity to address narratives of truth. While Dinah concludes that “(t)he repertoire of transitional justice is likely to remain broader than the jurisprudence of human rights courts, which serve a different end, and a different pace” from its very inception the Inter American Court of Human Rights has been drawn into the issue of accountability relating to transitions.

On the other hand, Cesare Romano suggests as an implication of my analysis the notion that international courts exercise discretion in taking jurisdiction, based on the nature of the issues at stake in the dispute, and the extent to which its underlying character is political. Drawing upon the current peace deal in Havana between Colombia and the FARC, which does not contemplate a maximalist approach to justice, Cesare raises the question of whether such a deal would withstand scrutiny given the jurisprudence in my article. He argues that the” time has come to start considering the merits of allowing international adjudicative bodies, like the various international human rights courts, and quasi-adjudicative bodies, like the Inter-American Commission and the Human Rights Committee, to pick and choose their cases.”

At present they have no such choice, Cesare continues:

Faced with inopportune cases, international adjudicative bodies too often end up compromising their legitimacy. They stall, dither, and, eventually, render flawed decisions that try to square the circle and appease everyone but end up appeasing no one. And when they take advantage of the little leeway they have and manage to dodge the case, they are open to criticism because of the lack of transparency about the considerations that have been weighted.

His proposal that international tribunals would have discretion to refuse cases say along political question lines is very interesting. No doubt, where a tribunal is long established and has acquired considerable legitimacy and recognized independence this could work. In other instances, where there is a greater fragility, the result might be undue political pressure on a tribunal not to adjudicate in controversial cases. The concern is that since transitional justice issues involve both law and politics that genuine legal disputes would be screened out due to political questions and the right of accountability might well be elided altogether.

Chandra Sriram questions the use of the term “crossjudging” to denote the influence of the jurisprudence of one tribunal on another.

In my view “cross-judging” is a broader notion than transnational judicial dialogue or cooperation because it can denote the use by a tribunal of another’s jurisprudence in the manner of simply drawing on the relevant normative material, i.e. without networking or any interaction between the judges. In this sense “cross-judging” points to a rich universe of case law in the international domain that is relevant, whether or not tribunals or judges choose to interact explicitly.

Chandra also makes several observations that to go issues of state responsibility, a focus of international law/ she underscores an issue at the heart of my article which goes to accountability for disapprearances where there is often blanket denial : “Judgments have relied on a mixture of state responsibility for direct action by its agents, and of state inaction. “ She invites me to expand on this issue “particularly in light of two challenges which confront international criminal and transitional justice: the role of non-state actors in serious abuses, and modalities of interpreting complicity and joint criminal enterprise “

Kristen Boon’s post addresses “the undercurrents of state responsibility” raised by my article.
Boon writes:

As conceptualized in her article, the right to accountability is a primary rule of international law that is based in treaty law, and particularly the right to life. It is also connected to other sources such as the International Convention for the Protection of All Persons from Enforced Disappearances, and Article 7 of the Statute of the ICC. There is, of course, no “right to accountability” as such.

She rightly notes that the emergence of the norm of right to accountability doesn’t settle but continues to create challenges re secondary rules particularly regarding attribution. I agree. One issue for instance is whether there might be attribution where a state egregiously fails to investigate alleged human rights abuses over a long period of time, simply foreclosing accountability. In some circumstances, could one draw the inference that, in doing nothing to address the wrongfulness of the conduct that the state is adopting or acknowledging that conduct as its own within the meaning of Article 11 of the ILC Articles. This is just to illustrate that the question of attribution cannot be reduced to considerations simply of state “control” when we are dealing with the right to accountability