Transitional justice, International criminal justice, Genocide
Criminal Law | International Law | Law and Society | Legal History, Theory and Process
The phrase "transitional justice" has had an amazingly successful career at an early age. Popularized as an academic concept in the early 1990s in the aftermath of apartheid's collapse in South Africa, the phrase quickly gained traction in a variety of global contexts, including Rwanda, Yugoslavia, Cambodia, and Sierra Leone. A sizeable literature has been generated around it, so much so that one might even call it a sub-discipline with inter-disciplinary qualities. Nonetheless, the concept remains an enigma. It defines the contours of an entire field of intellectual inquiry, yet at the same time it hides more than it illuminates. No one is exactly sure what it means.
One reason might be its combination of two very different kinds of words in a single phrase. "Justice" is perhaps the greatest of moral values, with a history that extends back to the moment man started criticizing the conduct of his fellow man. It is meant to evoke a universal, normative goal. "Transitional," on the other hand, defines a particular situation, an exceptional and limited moment that stands in contrast to the universal goal. So the second term limits and qualifies the first in some important way, but how is totally unclear.
Is transitional justice some other kind of justice, fundamentally different from justice during non-transitional moments? Or is it simply ordinary justice, a familiar end-state that remains elusive because a society has been ripped apart by genocide or some other ethnic conflict? If it is the latter, the field is about how to achieve, in a very pragmatic way, the usual goals of justice in difficult times. If it is the former, the field fundamentally re-conceives our understanding of justice in the face of radical social violence. One is largely an exercise in social science, the other an exercise in moral philosophy. The current field of transitional justice straddles this distinction, and does so, I shall argue, in a somewhat uncomfortable way. Although the concept now dominates international affairs as an umbrella under which these problems are investigated, it remains fundamentally misunderstood. Specifically, the term "transitional justice" betrays a deep tension between two approaches to justice that goes to the heart of the burgeoning program of international criminal justice.
Ohlin, Jens David, "On the Very Idea of Transitional Justice" (2007). Cornell Law Faculty Publications. Paper 438.
Published in: Whitehead Journal of Diplomacy and International Relations, vol. 8, no. 1 (Winter/Spring 2007).