Transitional Justice Symposium: Transitional Justice Decades On–The Dialogue Continues

[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).]

I am extraordinarily honored by these contributions, which reflect a daunting range & depth of scholarly reflection.  The perspectives are as diverse geographically as in disciplinary approach.  I have been challenged to travel in new directions and turn my mind to novel, and urgent, questions. What is clear is that transitional justice is an open field, in the best sense.

Colleen Murphy considers the line between transitional justice and everyday justice or injustice; transitional justice raises hard cases that any general theory of justice may also have to address. Dany Celermajer raises issues about the time frame of transitions and the implications for transitional justice, as  does Manal Totry -Jubran.  I wrote Transitional Justice in the context of dramatic regime changes, at the time appearing to be decisive and in bold strokes-from authoritarianism to democracy, crudely or broadly speaking. But could political transition be a long process of nevertheless transformative change but in fits and starts?  Manal raises the example of indigenous peoples in Canada but one could also here mention Black Lives Matter and the unfinished business of “reconstruction” in America. The protests, along with demands for a repair that has long been postponed may well inform a new transition because truth and redress may go a long way to repairing the disparate impact of economic harm as well as generating a secure sense of equal enfranchisement.  

Yet another dimension of this challenge to the boundaries of transition emerges  in Martin Bohmer’s sobering reflection on how many decades Argentina has wrestled with transitional justice: how quickly there was political transition in the sense of change of regime and democratic administration and even some change over more time in institutions such as the military; but while all of this may have happened, some sociological dimensions remain resistant to change.   Martin queries; “how long before the people change?”  We can see that for justice to be effective we need multiple transitions.   

What sort of transitions count?  Some may be more comprehensive even than political regime change.  Looking to the near future, Dany Celermajer raises other potential transitions humanity will have to grapple with on a global scale -namely the transitional demands imposed by the challenge of climate change.

II

Others among the contributors observed the many challenges to the parameters of the justice component in transitional justice —and especially in relation to our experience with its practice and the ever-looming realities of power politics and inequality.

Thus consider Justice Albie Sachs in his passionate video presentation.  Albie reminds us of the choices South Africa was confronted with, and the thought process that led to the original answer of amnesty for full disclosure.  “So what we learned from this, is that there isn’t a single thing called transitional justice, which you pick up and you take from one country to the next, and apply it. It’s a philosophy, it’s an approach, it’s an openness of mind, it’s the kind of imagination that Ruti had to find new ways, new styles, new methodologies, new visions, to deal with the old problems for abuses of power.”

Francisco Jose Quintana, invoking the late Carlos Nino, writes of the appeal of the “enduring imaginary” of justice.  I encountered Nino, one of two philosophers who were advising Argentine President Alfonsin, in Prague at one of the many meetings in that time puzzling over the dilemmas of transitional justice. Nino was always dialogic, open to hearing and concerned about enlightening knowledge of the past for the future as he would define his approach to justice.

Tati Waisberg addresses the shortcomings and complexities of transitional justice in Brazil.  To what extent, she asks, might political and constitutional change itself represented or fulfilled the demand for transitional justice, even without backward looking measures like trials and retribution?

Frank Haldemann reminds us that, despite the efforts to turn transitional justice into a formula or a universalist agenda, pursued by all too many globalist bureaucrats, it is deeply embedded in local politics. 

The question of politics is also raised in the posts by Iavor Rangelov and  Arnaud Kurze   In a sense,  they present the flip side of the anxieties posed by Martin Bohmer who raised the difficulty of a change of political regime not accompanied (at least at the same time) by a corresponding societal transformation.  Here, Kurze and Rangelov draw on their understanding and experience of the Balkans.  Is it possible for social change actually to precede state transformation (while provoking it)? As opposed to the scenario, for example, suggested by Martin Bohmer where societal transformation lags behind political transition in the narrow sense?

As Iavor put it: ” Some of the central dilemmas of transitional justice in the former Yugoslavia have to do with the persistence of political projects and power structures from the war and the mismatch between the state-centric nature of justice instruments and the regional character of the wars.. That very mismatch triggered intriguing discussions about the limits of the statist paradigm in the former Yugoslavia and generated a set of new questions for civil society. Iavor even contemplates a role for activist scholars or public intellectuals in the transition, in this spirit with Fionnuala Ní Aolaín’s reflections, we recall there was a space for scholars joining deliberations over what direction in Northern Ireland transitional justice.

These scholars emphasize the connection between justice and agency- particularly apparent in Arnaud Kurze’s post.   The empowerment of victims and the vitality of performance of transition are practices that ultimately enable change.   This is a kind of anticipatory transitional justice. It produces, in part, the kind of agency needed for broader transformation.

Valeria Vegh Weiss sets out to: “try to determine what the components of transitional narratives areand who the most legitimate leading forces behind them are.”  While full treatment of these significant questions may well be beyond this exchange, a transitional narrative by its nature may well eschew more hegemonic accounts.  A narrower question for these times “Shall we explore a victim-driven path for the enforcement of a transformative transitional justice process based on a reliable and rights-based transitional narrative?”  Indeed, the legitimacy of victim driven transitional justice is the subject of the last post in the exchange by Cheng -Yi Huang who writes of the challenge right now in Taiwan to the demand for transitional justice as politicized and that this has even informed some translations of the term “transitional justice” as particularist and divisive. This of course against the background of Hong Kong protests and the challenge of protecting human rights and maintaining democratic systems in the orbit of China today.  We see aspects of this polarization in some of the responses to the Black Lives Matter movement in the US as well.   All of which reminds us of the importance of articulating the broader project which in its legal dimension calls for something beyond victor’s justice-eg., consider the example of South Africa, where the move is towards more legitimate political power structures and greater equality implicating social and economic rights where relevant. Of course, this political imaginary may be most difficult to envision where it never previously existed.