From its very title, Transitional Justice, this collection of thematic essays by participant observers reporting on post-conflict conundrums from Sierra Leone to Colombia, East Timor to Iraq, Rwanda to Afghanistan, Cambodia to South Africa, and elsewhere, makes clear that justice is neither absolute nor predictable. In the absence of institutions and behaviours to support the rule of law, how is the vacuum filled?
The 19 practitioner-scholars here (none of whom is Canadian) are as diverse in perspective as the ten troubled countries and failed states they examine in detail. Yet the common theme throughout this pioneering work is that humanity and international law alike require a new lens through which to understand and cope with the aftermath of widespread atrocities and genocide. This effort is founded on a political realism that comprehends more than judicial responsiveness and is suggested by the book's subtitle, “beyond truth versus justice.”
Political scientists would appreciate knowing that this particular book is but part of a larger transitional justice project by scholars and front-line participants carrying out a much wider program of publishing, operating a documentation centre and running a fellowship program at the University of Notre Dame's Centre for Civil and Human Rights.
Ongoing reports of massacres of innocent civilians and state-supported atrocities shake the very foundations of the system of international law developed at mid-twentieth century, including the 1948 Convention on the Prevention and Punishment of Genocide. The bleak evidence of such evil, often erupting in long-time stable societies, highlights the importance of issues addressed in Transitional Justice in the Twenty-First Century. The conundrum is one of long-standing. Thrasymachus in The Republic debates with Socrates the concept that “might makes right,” asserting that “Morality is nothing more than the advantage of the stronger party.”
Naomi Roht-Arriaza, a professor of law at University of California and contributing editor of Transitional Justice, has been engaged with this subject for more than two decades, editing in 1995 Impunity and Human Rights in International Law and Practice, as well as authoring other books and articles. In what she now describes as “the new landscape of transitional justice,” Roht-Arriaza addresses the age-old scourge of criminal impunity.
For journalists or professors, policy analysts or students seeking a clear and dispassionate overview of the painful experiences and legacy of turmoil in “post-conflict” countries, this book is especially valuable. Each chapter was first presented as a paper at a conference on transitional justice ideas in May 2004 and the effort to “get it right” shows. In virtually all these offerings—ranging from E.G. Cueva's “The Peruvian Truth and Reconciliation Commission and the challenge of impunity” to E. Stover, H. Megally and H. Mufti's “Transitional justice and the US occupation of Iraq”—the valuable mixture of detailed information and rigorous analysis helps make this volume interesting and authoritative even as it is exploratory in nature.
For Canadians, because of our country's ongoing participation in Afghanistan, Patricia Grossman's chapter on “Truth, justice and stability in Afghanistan” provides substance and context for issues currently being addressed by the Canadian diplomatic, military and civilian mission in that ravaged country. Grossman, a researcher for Human Rights Watch in the Middle East before becoming director of the Afghanistan Justice Project, notes that “International attention to human rights concerns in Afghanistan has been plagued by inconsistency and selectivity” (272). A major difference, she adds, between Afghanistan and other countries currently struggling with the problem of addressing past abuses, is that the “transition from the repressive Taliban regime was not brought about by a popularly backed revolution, nor by a negotiated power-sharing accord among all parties to the conflict” (255). After the fall of the Taliban government in 2001 no formal national or international agreement was made on any truth, reconciliation or judicial process to deal with the past, “nor even that there should be any such process at all.” Tracing international and domestic developments since that time, she reviews the Transitional Justice Action Plan, signed by President Karzai in 2005, to create “a framework for establishing truth-seeking mechanisms, vetting procedures and other steps toward transitional justice” (273) but notes that only time would tell how this works out. The continuing armed conflict in parts of the country contribute to what Grossman calls “a vicious circle” as efforts to bury the past aggravate the very security risks and institutional weaknesses cited as reasons for avoiding addressing the past (274).
Whether in the specifics of Darfur, Guantanamo or Haiti or in the larger patterns of world history, the complexities of how societies emerging from periods of civil war or dictatorship deal with the legacies of the past are clearly presented by informed analysis throughout this fine publication. Such work, as Roht-Arriaza notes, became “a full-fledged subject of academic inquiry and human rights activism during the 1990s” (1). She acknowledges that the term transitional justice itself is “a bit slippery.” One definition is the “conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.” That of course implies a defined period of flux, after which a post-transitional state sets in, but as she adds, the “transition” may last decades and take longer for some issues than others. There are additional challenges: What is the state transitioning to? Are the transitional measures being implemented by the same regime that engaged in war or repression? Does emphasis on justice and the role of law eclipse the equivalent importance of education, culture and distributive justice?
The authors centre their analysis on the twin aspects of truth and justice. Their cumulative presentation of recent efforts to tackle a timeless problem provides a practitioner's focus on the workability of such techniques as criminal investigations and prosecutions, truth commissions, vetting or cleansing of security forces and formal reparations programs. Their blend of practical knowledge and theoretical understanding helps cut a pathway that can lead to higher accountability and success for societies rebuilding after conflict or dictatorship.
