Abstract
Transitional justice is broadly understood to refer to formal efforts to deal with past wrongs in the midst of a transition from an extended period of conflict or repression to democracy. In this paper, I consider the role of international criminal trials in transitional justice. I argue that such trials may contribute to transitional justice, but such contributions are conditional on two main factors. The first factor is time. The second factor is what other transitional justice responses are adopted domestically.
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David Hume, A Treatise of Human Nature, ed. L.A. Selby-Bigge, 2nd ed. (Oxford: Oxford University Press, 1739/1978); David Hume, An Enquiry Concerning the Principles of Morals, ed. Tom L. Beauchamp (Oxford: Oxford University Press, 1751/1998).
Limited scarcity of goods is not the only circumstance of justice Hume discusses. However, the structure of argumentation for the other circumstances he considers is analogous to the summary above.
For an extended discussion of these features, see Colleen Murphy, The Conceptual Foundations of Transitional Justice (New York: Cambridge University Press, 2017).
The argument for these features is that they are widely recognized and discussed as features of transitional societies by scholars of transitional justice. Such scholars do not characterize the features that I discuss as features constitutive of the circumstances of transitional justice; but, rather often, they describe how each of the features I discuss is present in particular cases.
Which rights are the subject of interest of transitional justice, and, in particular, whether economic and social rights should be included, is the subject of extensive debate in the literature on transitional justice. I argue for an expansive understanding of the range of rights violations that are salient, which includes economic and social rights, in The Conceptual Foundations of Transitional Justice.
This perspective I discuss in detail in my “Lon Fuller and the Moral Value of the Rule of Law,” Law and Philosophy, 24 (2005), 239–262, and in Chapter 1 Colleen Murphy, A Moral Theory of Political Reconciliation (New York: Cambridge University Press, 2010).
Indeed, the Guardian recently published an article on July 12 written by Ian Black titled “Hundreds ‘disappeared’ by security forces in Egypt, says Amnesty,” https://www.theguardian.com/world/2016/jul/13/hundreds-disappeared-security-forces-egypt-amnesty-report.
For an extended discussion of why this is the best way to frame the question of transitional justice, as opposed to the questions that retributive, corrective, or distributive theories of justice take up, see Chapter 2 of The Conceptual Foundations of Transitional Justice.
On this as one of the many meanings you could give to “reconciliation,” see Linda Radzik and Colleen Murphy, “Reconciliation,” The Stanford Encyclopedia of Philosophy (Summer 2015 Edition), Edward N. Zalta (ed.), http://plato.stanford.edu/archives/sum2015/entries/reconciliation/.
This understanding of the rule of law is based on Lon Fuller, The Morality of Law, rev. ed., (New Haven: Yale University Press, 1969). For its salience as an objective of relational repair in transitional contexts, see Chapter 1 of A Moral Theory of Political Reconciliation.
On this basic definition of trust, see Karen Jones, “Trust as a Reactive Attitude,” Ethics 101(1) (1996), 4–25.
For more on trust, see Chapter 3 of A Moral Theory of Political Reconciliation.
Theorists who cite these conditions include Christopher Bennett, The Apology Ritual: A Philosophical Theory of Punishment (Cambridge: Cambridge University Press, 2008). On repudiation as important, see R.A. Duff, Punishment, Communication, and Community (Oxford: Oxford University Press, 2001); R.A. Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford: Hart Publishing, 2007); Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston, MA: Beacon Press, 1998); Linda Radzik, Making Amends (New York: Oxford University Press, 2010); Margaret Urban Walker, Moral Repair (New York: Cambridge University Press, 2010).
See, for instance, Kate Connolly, “Auschwitz guard jailed for 5 years in Holocaust murder trial,” https://www.theguardian.com/world/2016/jun/17/auschwitz-guard-reinhold-hanning-jailed-holocaust-auschwitz.
For a debate about how societal transformation should be pursued via trials, see discussions of the trials of grudge informers. See, for example, Lon Fuller, “Positivism and Fidelity to Law: A Reply to Professor Hart,” Harvard Law Review, 71(4) (1958), 630–672; H.L.A. Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review, 71(4) (1958), 593–629; David Dyzenhaus, “The Grudge Informer Case Revisited,” New York University Law Review, 83(4) (2008), 1000–1034; Kristen Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon Fuller (Oxford: Hart Publishing, 2012); Colleen Murphy, “Political Reconciliation, Punishment and Grudge Informers,” in Alice MacLachlan and Allen Speight (eds.), In the Wake of Conflict: Justice, Responsibility and Reconciliation, (New York: Springer, 2013), 117–132.
Ruth Maclean, “Hissène Habré ordered to pay millions for crimes against humanity in Chad,” https://www.theguardian.com/global-development/2016/jul/29/hissene-habre-compensation-90m-crimes-against-humanity-chad?CMP=share_btn_tw.
Reed Brody, “Dispatches: Hissène Habré Sentenced to Life for Atrocities,” May 30, 2016, https://www.hrw.org/news/2016/05/30/dispatches-hissene-habre-sentenced-life-atrocities.
Citing the World Bank data for this figure. http://hdr.undp.org/en/content/income-gini-coefficient.
Elise Keppler, “This Is What the Conviction of Chad’s Former Dictator Means for African Human Rights,” https://www.hrw.org/news/2016/06/10/what-conviction-chads-former-dictator-means-african-human-rights.
International Criminal Tribunal for the former Yugoslavia, http://www.icty.org/x/cases/karadzic/cis/en/cis_karadzic_en.pdf.
Marko Milanovic, “ICTY Convicts Radovan Karadzic,” Blog of the European Journal of International Law, http://www.ejiltalk.org/icty-convicts-radovan-karadzic/.
The next two paragraphs were first published in a blog post I wrote for RECOM titled “What is Political Reconciliation? Reflections on Reconciliation after the Karadzic Trial,” http://www.recom.link/political-reconciliation-reflections-reconciliation-karadzic-trial/.
Nidzara Ahmetasevic, “The Radovan Karadzic verdict will change nothing,” Al Jazeera, March 26, 2016, http://www.aljazeera.com/indepth/opinion/2016/03/radovan-karadzic-verdict-change-bosnia-serbia-160327093504907.html.
Julian Borger, “Radovan Karadžić’s sentence for Bosnia genocide exposes continuing divisions,” March 24, 2016, https://www.theguardian.com/world/2016/mar/24/radovan-karadzics-sentence-for-bosnia-genocide-exposes-continuing-divisions.
Denis Dzidic, “Karadzic Verdict: Mixed Reactions Reflect Divided Bosnia,” Balkan Insight, March 24, 2016, http://www.balkaninsight.com/en/article/karadzic-verdict-mixed-reactions-reflect-divided-society-03-24-2016.
Julian Borger and Owen Bowcott, “‘Is the tribunal not ashamed?’ Karadžić sentence angers victims,” the Guardian, March 24, 2016, https://www.theguardian.com/world/2016/mar/24/radovan-karadzic-hague-tribunal-sentence-survivors-victims-reaction.
Borger, “Radovan Karadžić’s sentence.”
Dzidic, “Karadzic Verdict.”
Borger and Bowcott, “Is the tribunal not ashamed?.”
On this point, see Chapter 4 of A Moral Theory of Political Reconciliation and Chapter 3 of The Conceptual Foundations of Transitional Justice.
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Murphy, C. International Criminal Trials and the Circumstances of Justice. Criminal Law, Philosophy 12, 575–585 (2018). https://doi.org/10.1007/s11572-017-9441-x
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DOI: https://doi.org/10.1007/s11572-017-9441-x