Review essay
Transitional justice
David Dyzenhaus*
The following books are reviewed:
Alexandra Barahona De Brito, Carmen Gonzalez-Enriquez, and Paloma Aguilar, eds.,
The Politics of Memory: Transitional Justice in Democratizing Societies (Oxford: Oxford
University Press, 2001) xxv, 413 pp. [Barahona De Brito et al.]
Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crime Tribunals
(Princeton: Princeton University Press, 2000) 402 pp. [Bass]
Alex Boraine, A Country Unmasked: Inside South Africa’s Truth and Reconciliation
Commission (Oxford: Oxford University Press, 2000) xv, 466 pp. [Boraine]
Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New York:
Routledge, 2001) xii, 340 pp. [Hayner]
Mahmood Mamdani, WhenVictims Become Killers: Colonialism, Nativism, and the Genocide
in Rwanda (Princeton: Princeton University Press, 2001) xvi, 364 pp. [Mamdani]
A. James McAdams, Judging the Past in Unified Germany (Cambridge: Cambridge
University Press, 2001) xix, 244 pp. [McAdams]
Juan E. Mendez, Guillermo O’Donnell, and Paulo Sergio Pinheiro, eds., The (Un)Rule of
Law & the Underprivileged in Latin America (Notre Dame, Indiana: Notre Dame
University Press, 1999) ix, 357 pp. [Mendez et al.]
Margaret Popkin, PeaceWithout Justice: Obstacles to Building the Rule of Law in El Salvador
(Pennsylvania: Penn State Press, 2000) xvi, 287 pp. [Popkin]
Robert I. Rotberg & Dennis Thompson, eds., Truth v. Justice: The Morality of Truth
Commissions (Princeton: Princeton University Press, 2000) vii, 309 pp. [Rotberg &
Thompson]
Ruti G. Teitel, Transitional Justice (New York: Oxford University Press, 2000) ix, 292 pp.
[Teitel]
Richard A. Wilson, The Politics of Truth and Reconciliation in South Africa: Legitimizing the
Post-Apartheid State (Cambridge: Cambridge University Press, 2001) xxi, 271 pp. [Wilson]
© Oxford University Press and New York University School of Law 2003, 163
I.CON, Volume 1, Number 1, 2003, pp. 163–175
*Faculty of Law, Department of Philosophy, University of Toronto, Canada.
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While the label “transitional justice” is very recent, the topic is not. Societies that have
wanted to make a break with the injustice and authoritarianism of the past have
adopted various models to mark that break and to bring in a better future. These
models fall roughly into two groups. There are the criminal accountability models,
either international criminal tribunals, most famously the Nuremberg Tribunal, or
domestic tribunals, or some combination of the two used to bring perpetrators of injustice
to book. Alternatively, there are the models that mark the break by a formal declaration
not of accountability but of amnesia—the society wishes to put the past behind
it, most notably through an amnesty for the perpetrators of injustice.
As Ruti Teitel shows in the most comprehensive analysis to date, one of the most
vexed topics in the debate about transitional justice—the question of amnesty—was
addressed in the Athenian Constitution that followed Athens’ defeat in the
Peloponnesian War.1
And her frequent illuminating references to the stories of the Old
Testament illustrate that the problems and complexities of reconciling a deeply divided
society might figure just as dramatically in the founding myths of a society as do its
famous military victories and defeats.
Moreover, there are treatments of the topic in the classics of political theory. The
most striking example might well be Thomas Hobbes’s Leviathan.2
Although Hobbes
starts his account of the process by which civil society is achieved in the state of nature,
as a matter of fact his audience was the people who would have the task of reconstructing
a society torn apart—though not totally destroyed—by civil war. Leviathan
contains both significant instruction about how to achieve reconciliation or civic harmony
in the face of deep ideological division and an account of the construction of
political and legal institutions in order to maintain that harmony.
So, one might ask, why is a big deal made about transitional justice? And there is no
doubt that there is a big deal. The superb bibliographical survey in Barahona De Brito
et al. takes up pages 315–51 of the book, but contains only a fraction of the material
that was produced in 2000. One answer to this question is simply that a number of
societies around the world managed to bring to a formal end a protracted period of
severe repression of either a minority or a majority of their inhabitants and so were
confronted with the problem of how, or indeed whether, to deal with the details of
repression as they set about constructing the future. At the same time, other societies
were plunged into civil or other war by the breakup of the political alliances of the Cold
War, as in the Balkans, or found themselves in some other abyss of violence, most
notably in Rwanda.
But one also has to take into account that the criminal accountability and amnesiac
models no longer dominate the debate. As we will see, other models have emerged,
in particular the Truth Commission model, which tries to combine both accountability
and amnesty in order to avoid amnesia while achieving a transition to a just society.
The idea that these transitional events should be grouped under the rubric of “transitional
justice” has its origins in an international trend that makes the countries of
Central and Eastern Europe central to the topic—the trend of liberalization. I take my
understanding of liberalization from Teitel’s account, where liberalization amounts to
more than being caught up in a process of globalization since it involves a deliberate
164 REVIEW ESSAY
1
Teitel, at 52.
2
THOMAS HOBBES, LEVIATHAN (C.B. McPherson, ed., Penguin Books 1968) (1660).
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attempt to put in place liberal democratic institutions in order to mark the end of the
transition. Significant here is that many within the transitional justice debate take it
almost for granted that judicial review on the basis of a liberal democratic constitution
is an indispensable and important marker of a successful transition.
One might then surmise, cynically but not altogether unrealistically, that the transitional
justice debate is about how societies might get as close as possible to being
clones of the United States of America, which would then make that debate look
uncomfortably like the debates of the 1970s about third world development. That is,
however good the intentions of those who participate in the debate, its practical effect
will be to fit its subjects into the role of obedient bit players in the economic plans of the
most powerful interests within the most powerful nations.
There is, in my opinion, a real concern about letting the idea of liberalization both
frame and answer the question of transitional justice even if it is the case that without
that idea the question would not be posed. But as we will see, even the critics of liberalism
in the transitional justice debate (Mamdani and Wilson) seem to accept a liberal
framework. Indeed, there is a remarkable attraction in the literature to the idea that
there are universal human rights, so that even the critics of transitional justice share
the goal of its proponents—establishing institutions that serve the cause of human
rights. All they differ about, it seems, are the means, and it is not even clear that the differences
are so great in this respect. Further, there is something close to agreement that
the question of what means are appropriate is largely dependent on context.
Mamdani’s account of the genocide in Rwanda shows how the standard account of
the genocide there presupposes that what “went wrong” was that colonialism united in
one nation state two distinct cultural groups—the majority Hutu and the relatively
more economically privileged Tutsi—with the tragic result that the majority Hutu
decided to solve the problem by killing every Tutsi individual.
Mamdani argues that these cultural identities have to be contextualized if one is to
make sense of how several hundred thousand people could participate in the mass murder
of up to a million of their neighbors and, further, make sense of it in a way that will
allow for reconciliation. One has to understand how these identities were constructed
and reconstructed in the course of the colonial project, how they were influenced by
regional development, and how, once the colonial power had retreated, the Hutu and
the Tutsi became locked in a series of political battles of which the genocide is the most
recent and perhaps by no means the last.
Mamdani, however, does not wish to substitute for the story of clash of cultural
groups a Marxist narrative where culture and politics itself reflect the real struggle,
which is about the economic power relations bequeathed by colonialism. Politics cannot
be reduced either to culture or to class, but has to be seen as having a creative role.
Indeed, it is in the creative potential of politics that Mamdani sees the hope for reconstruction
as well as a significant cause of past destruction. Moreover, the hope is for a
politics orientated towards justice.
He rejects the idea that justice should be reduced to victor’s justice—the
“Tutsification” of state institutions, since the price of victor’s justice is either a divorce
or a continued civil war.3
Drawing on Mamdani’s analogy between the situation in
Rwanda and apartheid South Africa, one might say that victor’s justice in Rwanda
REVIEW ESSAY 165
3
Mamdani, at 270–72.
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would be akin to restoring whites to political power in post-apartheid South Africa after
a period in which the black majority rebelled against white privilege by engaging in
a Rwanda-style massacre. Instead he proposes what he calls “survivor’s justice”—a
“form of reconciliation . . . that is not at the same time an absence of justice, and thus
an embrace of evil . . . ”4
The term survivor deliberately embraces both victims and perpetrators and is meant
to steer a course different from the liberal one involved in de-Nazification—blaming the
perpetrators while identifying the victims—and de-Sovietization—which blames the
system by identifying victims but not perpetrators. Survivor’s justice makes sense only
in a context where, as in Rwanda, the beneficiaries were few and the perpetrators many, by
contrast, say, with South Africa, where the perpetrators were few but the beneficiaries
many. Because of the structure of apartheid, the focus in South Africa—Mamdani
suggests—should be on social justice—the only basis for a “durable reconciliation.” In
other contexts, criminal justice will be the correct focus. But in Rwanda the focus
should be political justice—“reform of the institutions of rule.”5
The problem, as Mamdani portrays it, is that while the Tutsi minority want justice,
the Hutu majority see justice as a way of fortifying minority power and thus they want
democracy. To achieve reconciliation one has to look for a reconciliation between
democracy and justice, an approach to how one governs rather than to who governs,
an approach that will foreclose the “possibility of a democratic depotism” (his emphasis).
And so, he concludes, one has to find a way of founding political identity not in any cultural
construct—here, the liberal idea of the nation—but rather in the purely political
idea of common citizenship based on the contingent fact of shared residence.6
Now I have used the term “liberal” to describe one of Mamdani’s theoretical foes
without his authorization, since that term is not one he uses in the book. Indeed, the
culture-based explanations he rejects can just as well be fascist as liberal. But it is clear
that to the extent that he criticizes contemporary nonMarxist based explanations of the
Rwandan genocide, the objects of his criticism fall within a broadly conceived liberal
camp, as does the thought he rejects that reconciliation will be brought about through
Western-style criminal justice that seeks out the perpetrators of atrocities.
However, the fear of democratic despotism has been a mark of liberal political
thought for much more than a century. And the rejection of culture as the glue of a
civil society—indeed the thought that culture is more of an incendiary than a glue, so
that what one has to get right is the value basis of a common citizenship—is the mark
of much recent liberal democratic political thought, as can be seen in the writings of
Ronald Dworkin, Jürgen Habermas, and John Rawls.
Mamdani’s avoidance of any direct discussion of liberalism is curious. The only
respect in which he might be thought, on the basis of this book, to be a critic of liberalism
is that he rejects in one particular context an idea commonly associated with liberalism—
that the only way to produce a liberal society out of an illiberal one is to bring the
leaders of the illiberal society to book by using the criminal law to make them accountable.
In addition, that avoidance means that he does not offer even a glimpse of the content
or kind of institutions he has in mind. As I will now show, a rejection of the idea of
166 REVIEW ESSAY
4
Id. at 272–73.
5
Id. at 273.
6
Id. at 274–82, at 281.
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criminal justice as a necessary tool of a successful transition is both widely shared by
most of the participants in the transitional justice debate and the association of that
idea with the liberal tradition is, as we will soon see, of quite recent provenance.
In regard to the first point, the experience of South Africa’s Truth and
Reconciliation Commission (TRC) has given substance to one of the three main
assumptions of the transitional justice debate—that the kind of justice appropriate for
transitions is different from our common understandings of justice. Both the TRC’s
Final Report and many of its supporters have argued that the success of the TRC came
about because the justice it achieved was “restorative” in nature—a kind that is superior,
at least in the transitional context, to retributive or criminal justice.
It is well known that perpetrators of gross human rights violations who testified
before the TRC received both criminal and civil amnesty if the amnesty panels of the
TRC were satisfied that the perpetrator had fully disclosed his role and that the violation
was committed in pursuit of a political purpose.7
Thus the elites who negotiated South
Africa’s transition decided not to rely on criminal trials as the main mechanism for
dealing with the past.
One can view this decision as born of necessity: the old regime retained enough
muscle to sabotage the transition and the new regime lacked the resources to mount
successful prosecutions. In these circumstances, justice was unlikely to be achieved, so
it was traded for the truth that emerged from the hearings at which victims of violations,
or their relatives, testified, as well as the hearings at which perpetrators sought
amnesty.
Alternatively, there is the claim made by the TRC itself and by its many supporters
that truth was not traded for justice. Rather, the way the TRC went about finding out
the truth achieved a kind of justice different from the criminal or retributive justice
with which those who see a trade-off mistake justice itself. The kind of justice that the
TRC achieved is restorative justice, which has something of the virtue of retributive
justice in that it holds perpetrators accountable for their actions.
Moreover, it is claimed that at least in a transitional context, restorative justice has
many advantages over retributive justice. It promotes a process of truth finding in
which a fuller picture of the truth emerges than would emerge in a series of trials. For
in the truth finding process the testimony of victims has a role that goes well beyond
serving as an instrument to achieve conviction and amnesty seekers have an interest in
making full disclosure, which in turn implicates others who therefore will come forward
to seek amnesty. And in taking this role, victims might find not only that they can
come to terms with the abuses but also that they are “restored” to a relationship of
equality with the perpetrators, so that they develop a sense of agency appropriate for
participation in a democratic society. Even more generally, the supporters of the old
regime are forced through the confessions of the perpetrators to acknowledge its
nature, while those who suffered under that regime, though without suffering gross
human rights violations, can—through the experience of the victims—also come to
terms with the past and find their agency in a way appropriate for a democratic future.
There are strong and weak versions of restorative justice, with the weaker—and
more convincing ones—arguing that something important is lost when one foregoes
REVIEW ESSAY 167
7
The statute also required that the violation be shown to be proportional to the purpose, but
amnesty decisions did not apply this requirement.
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retributive justice but that in particular contexts the moral sacrifice involved is
outweighed by the moral gains for a society in transition. Of the books under review,
Boraine’s offers a weak version, situated within an intriguing and self-critical account
of the TRC’s genesis, process, and aftermath, by someone who was one of its chief intellectual
architects, its deputy chairperson, and who now devotes his experience to
trying to draw out the implications of the TRC for other contexts. In addition, several of
the essays in the excellent collection edited by Rotberg & Thompson, including one by
Boraine,8
are in a similar vein, with that by Elizabeth Kiss offering far and away the best
philosophical justification of the idea of restorative justice that I have encountered.9
However, one of the other books under review suggests that the actual experience of
the TRC should provide a highly cautionary note. On the basis of interviews, Richard
Wilson shows that many victims did not get to testify and those who did often found
themselves in a micro-managed process in which their testimony was reduced to the
empirical data the TRC required.10
Moreover, the TRC sought in its reports of victims’
testimony to procure or construct a redemptive theological narrative of reconciliation
and forgiveness rather than give voice to the desire for vengeance.
Wilson also argues that the fact that criminal violence has post-apartheid South
Africa in a frightening grip cannot be divorced from the sense among South Africa’s
majority of economically disadvantaged black population that the beneficiaries of
apartheid continue to enjoy its benefits, and that the perpetrators of gross human
rights abuses have gone unpunished. The conflation of amnesty and reconciliation
with human rights embodied in the TRC was, in his view, part of an attempt to legitimize
a post-apartheid state, a state that was destined to move beyond apartheid in
mainly formal ways. Here his account chimes explicitly with Mamdani’s claim that in
South Africa social justice is key to reconciliation.11
Again like Mamdani, Wilson is far from claiming that human rights are unimportant.
Indeed, he regards the formation of a human rights culture as an essential ingredient
in a successful transition but finds the TRC a pragmatic compromise that moved
too far away from principle. Thus he suggests that punishment of perpetrators is the
best instrument for avoiding the creation of a culture of impunity, and for bringing
about respect for human rights. Human rights talk has been enlisted in a project of
nation-building in place of transforming an authoritarian legal order into one that
delivers accountability for violations of human rights.
In my opinion, Wilson rather underestimates the potential of the military old guard
in South Africa to have brought the transition to a crashing halt without the promise,
168 REVIEW ESSAY
8
Alex Boraine, Truth and Reconciliation in South Africa: The ThirdWay, in Rotberg &Thompson, at 141.
9
Elizabeth Kiss, Moral Ambition Within and Beyond Political Constraints: Reflections on Restorative
Justice, in Rotberg & Thompson, at 68.
10
In addition, it seemed that perpetrators for the most part stuck to a script, probably coordinated
by the few lawyers who appeared time and again with this group, which disclosed as little as possible
and attempted to confine implicating others to implicating security force actors who had died.
And in relation to the issue of catharsis, perpetrators stuck for the most part to rote apologies if
they apologized at all and victims often found the experience of testifying deeply traumatic. Finally,
the South African government was committed to providing meaningful compensation to victims
in accordance with the TRC’s recommendations, but it has reneged on this commitment.
11
Wilson, at 35.
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made in the Interim Constitution, of amnesty. At the same time, he overestimates
the capability of the transitional state to deliver effective prosecutions of perpetrators.
The individualized amnesty provisions of the TRC effectively undercut the promise of
a general amnesty, delivered some form of accountability, and opened up the potential
for prosecutions that might—as a result of disclosures made in the amnesty hearings—
follow failed attempts to get amnesty or failure to apply at all.12
But perhaps most troubling about his critique of the TRC is that he too quickly
assimilates the retributive justice of the criminal trial to revenge.13
His reasoning seems
to be that because popular culture demands revenge and because the criminal trial is
the closest a civilized society comes to dishing out revenge, one should opt for the criminal
trial above other mechanisms of accountability. In this respect he is quite close
to some of the proponents of a strong version of restorative justice, most notably
Desmond Tutu—the chairperson of the TRC—although they equate trial and revenge
in order to reject retributivism.
Wilson’s equation of a criminal trial with revenge—and thus in his view to be
recommended because it is more in line with popular desires—is of a piece with a
general theme of the book that the TRC was an elite-driven rather than a democratic
process. But, as Boraine and many of the authors in Rotberg & Thompson emphasize,
one of the features of the TRC that distinguishes it from previous truth commissions is
that it was designed within South Africa’s first democratic parliament amidst extensive
public debate, its commissioners were appointed in such a way as to ensure a high
degree of representation and popular legitimacy, and its proceedings were not only for
the most part open but very effectively broadcast by the media.
Moreover, as I have mentioned, the idea that criminal justice should be one of the
principal tools of a transition is of recent provenance. Bass deftly deals with fascinating
material, including the decision about what to do with Napoleon, the Leipzig trials for
World War I crimes, the Constantinople trials for perpetrators of Armenian genocide,
Nuremberg, and The Hague. He also shows that liberal political leaders often thought
that the best way to transform a society is to deal with the principal agents of atrocities
by revenge—usually summary executions without any pretence of Western-style
criminal justice.
The move to holding trials was held back, first, by the fact that generally speaking
this issue arose as one of how to deal with a defeated enemy and it was thought inappropriate
to judge the enemy by one’s own standards. Indeed, even in the lead up to
Nuremberg, the idea was put forward that Nazi atrocities against German Jews could
not be addressed in the same way as atrocities in the occupied countries, since decisions
about how to deal with its own subjects fell within Germany’s prerogative. In order to
pursue this sort of idea, the values against which behavior should be measured had to
be thought of as universal, not only in the sense that everyone should abide by these
values, but also in the sense that the values have universal jurisdiction—they should be
applied to everyone. The extension of what Bass calls “legalism” from the domestic to
the international arena required a confidence about the values of legalism that was
harder won than is commonly supposed.
REVIEW ESSAY 169
12
Wilson does place some hope in this potential in a separate essay. See Richard A. Wilson, Justice
and Legitimacy in the South African Transition, in Barahona de Brito et al.
13
Wilson, at 156–85.
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In addition, holding a trial had to be thought worthwhile in order to overcome certain
practical obstacles. A full-blown trial is often protracted, permits ideological grandstanding,
and has an uncertain outcome. Also, there are difficult questions about who
should conduct the trial. An international body might look too much like victor’s
justice or revenge but the experience of letting the defeated country try its own is not a
happy one. Finally, there are difficulties about which procedures are appropriate—for
example, British-style criminal justice requires the presence of the accused while
French style does not.
Unfortunately, Bass does not explore in any detail the idea of legalism, but instead
relies (mostly implicitly) on Judith Shklar’s rather skeptical treatment of this topic.14
Moreover, he does not advert sufficiently to a factor that is surely important in understanding
why human rights might be thought to have universal jurisdiction—that
at least many of the people who have suffered under state oppression now seem to
understand their suffering as an affront to their human rights, and thus want to see a
transitional process that both addresses that affront and puts in place institutions that
will help ensure such affronts do not happen again. One has, in short, to respect the
rights of perpetrators by “staying the hand of vengeance” if one wants rights and the
rule of law to be generally respected. The issue then is not so much whether a criminal
trial model, domestic or international, or a TRC model is best, but rather what best
serves the rule of law in a particular context.
To go back to Wilson and theTRC, if the majority of South Africans wanted to transform
their political culture into one protective of human rights, and if criminal trials of
perpetrators were not a realistic option, and if the TRC’s amnesty process did provide a
kind of public education in which respect for human rights was inculcated, then the
force of his objections to that process is in question. Further, support for that process
need not go the whole length of turning into even a weak version of restorative justice.
As Jonathan Allen has argued, the kind of justice achieved by the TRC might better be
understood in terms of what he calls “justice as recognition” and “justice as ethos.”15
In regard to “recognition,” the work of the Committee that heard from victims—the
Committee on Human Rights Violations—supports the restoration of the rule of law by
drawing attention to the “evil consequences resulting from apartheid and the officially
sanctioned transgressions of the rule of law.” The hearings thus “demonstrate the consequences
of a lack of public commitment to justice and the rule of law and thus show
the importance of such a commitment. In this sense the TRC supports legal recognition
in a context where law’s equal recognition of all responsible agents has been grossly
distorted.”16
In regard to the “justice as ethos,” this involves the demonstration of how under
apartheid people’s sense of justice was corrupted. Justice became equated with the
ideology of the group one happened to belong to, rather than serving as a base line
from which any particular ideology might be criticized. This equation in turn led to
an impoverished view of public discourse—politics is either a dirty business or a noble
calling in which the end justifies the means. But neither of these views permits any
170 REVIEW ESSAY
14
JUDITH N. SHKLAR, LEGALISM: LAW, MORALS, AND POLITICAL TRIALS (Harvard Univ. Press 1986).
15
Jonathan Allen, Balancing Justice and Social Unity: Political Theory and the Idea of a Truth and
Reconciliation Commission, 49 U. TORONTO L.J. 315, 328–32, 335–38 (1999).
16
Id. at 330–31.
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operation for a sense of injustice, and that sense is required if the transitional government
is to preserve legitimacy and a commitment to the constraints of the rule of law,
constraints that make it possible for citizens to call government to account for injustice.17
As I understand them, Allen’s ideas of justice as recognition and justice as ethos are
not meant to be discoveries of new kinds of justice. Rather, they are labels for processes
that serve the transformation of an unjust society into a just one. But the justice they
serve is little more than the justice of the rule of law, the kind of justice that has to be
in place before order becomes something worth having and that also makes it possible
for a society to decide other kinds of political issues in a civil fashion. And if that is right,
then most of the debate about transitional justice should be boiled down to one about
how to achieve the rule of law.18
This boiling down, even deflation, might cause disappointment not only to those
who see in transitional justice and the work of truth commissions something altogether
new and exciting, but also to the political activists who risked much to bring about the
transition. As one such activist, Bärbel Bohley, from the former German Democratic
Republic famously complained of the transition that followed German reunification,
“We expected justice, but we got the Rechtsstaat instead.”19
McAdams’s exploration of this and other issues within the German transition
achieves the rare feat of exploring fraught moral issues without moralizing. In one
respect, the German transition is a fruitful testing ground for ideas of restorative justice,
since the great resources available to the Federal Republic made it possible to pursue
several different kinds of transitional process: criminal trials for the killings by border
guards of those caught attempting to flee to the West; a parliamentary “expert” inquiry
that produced a report about systemic injustice; the Gauck Authority, which managed
the process of access to Stasi files that revealed the details of collaboration; and an elaborate
system of returning private property to its former owners.
But on the other hand one has to take into account, as Jan Werner Müller puts it in
his admirably compact account of the same issues in Barahona De Brito et al., “whereas
in other Central and Eastern European countries dictatorships disappeared, in East
Germany the country disappeared along with the dictatorship.”20
In addition, the very
fact of the resources available makes it difficult to draw lessons from the German experience.
But then the general issue of resources can lead to dispiriting conclusions about
the potential for transitional justice.
As Barahona De Brito et al. put it in the conclusion to their high-quality collection
of case studies (the role of international actors, Portugal, Spain, the Southern Cone,
Central America, South Africa, Central and Eastern Europe, Germany, and the Soviet
Union), one has to take into account the “paradox of the probable and the unnecessary”:
“The impact of truth and justice policies on a new democracy depends on starting
conditions or the initial balance of power; in other words, the more likely the
REVIEW ESSAY 171
17
Id. at 336–38.
18
For more argument, see David Dyzenhaus, Justifying the Truth and Reconciliation Commission, 8 J.
POL. PHIL. 470 (2000).
19
McAdams, at 7.
20
Jan-Werner Müller, East Germany: Incorporation, Tainted Truth, and the Double Division, in
Barahona et al., at 248.
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implementation of such policies is because of a favorable balance of forces, the less
necessary they are to ensure a process of democratization.”21
But, as they also point
out, whatever the effect of such policies on democratization, they are “crucially important
moral and political demands which are, even if imperceptibly, part of a changing
climate that places respect for human rights at the forefront within and between
national communities.”22
I want to draw attention to two features of the German experience of transitional
justice that seem to have implications for other transitions. The first undercuts the
claim made by Wilson and also by the historian Charles S. Maier in Rotberg &
Thompson that one should not overload a commission charged with dealing with the
past with too many tasks, indeed that the most effective commission is a truth commission
with a purely historical mandate.23
For both McAdams and Müller suggest that the
historical inquiry undertaken by the German parliament turned out to lack impact
precisely because it seemed that nothing was at stake in contrast to the vividness of the
amnesty-driven inquiry undertaken by the TRC.
Second, there is the issue that comes out of the complaint quoted above that East
Germans found that they had unwittingly traded justice for the rule of law. This issue is
particularly well presented by the German experience in part because the Federal
Republic had been through an earlier transition—the process of de-Nazification. In
that transition, Gustav Radbruch, one of Weimar’s most eminent lawyers, had suggested
a “formula” that said that positive law ceases to be law when it reaches a certain
pitch of injustice.24
The “Radbruch formula” gave post-war German courts a device for stripping Nazi
enactments of the character of law in order to facilitate judges’ deciding legal issues
that had their origin in those enactments in a fashion that respected the liberal norms
of West German society. For example, in 1968 the Federal Constitutional Court decided
that the Reich’s Citizenship Law that had stripped a Jewish lawyer of his nationality
was void. Thus, the Court was able to decide a matter concerning an inheritance on the
basis that the lawyer had never lost his nationality.25
In some of the post-reunification border guard cases, judges invoked the formula in
order to void the provision of the statute that set out the grounds for justification of
such killings. In addition, the Federal Constitutional Court invoked the formula to
dismiss an appeal against the constitutionality of the Honecker trial—in which senior
politicians and officials were charged with “indirect complicity” in the killings.
The Court argued that the expectation that one would be held accountable only to the
legal standards in effect at the time of one’s action is based on the assumption that
172 REVIEW ESSAY
21
Barahona et al., at 314.
22
Id.
23
Charles S. Maier, Doing History, Doing Justice: The Narrative of the Historian and of the Truth
Commission, in Rotberg & Thompson, at 261.
24
See Robert Alexy, A Defence of Radbruch’s Formula, in RECRAFTING THE RULE OF LAW: THE LIMITS OF
LEGAL ORDER 15 (David Dyzenhaus ed., Hart Publishing 1997); Julian Rivers, The Interpretation and
Invalidity of Unjust Laws in RECRAFTING THE RULE OF LAW, supra, at 40; Stanley L. Paulson, Radbruch
on Unjust Laws: Competing Earlier and Later Views, 15 OXFORD J. OF LEGAL STUDIES 489 (1995).
25
See Alexy, supra note 23, at 18–19.
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the standards are democratically enacted in a way that takes account of basic human
rights. When a nondemocratic government uses the law to justify the “worst criminal
injustice”, the assumption no longer holds. The contradiction between positive law
and justice is so great that the constitutional “promise of legal security had to be
subordinated to the higher norms of humanity.”26
McAdams comments that it is understandable that the Court was reluctant to allow
a constitutional guarantee against ex post facto law to be “misused to justify particularly
crass forms of injustice” but that the argument seemed to “recommend a standard
of personal responsibility that was open to abuse. Taken to an extreme, all that a
particularly vengeful court would have needed to do to establish guilt was to show that
a given individual had been involved in the commission of an act that, in the court’s
estimation, had violated basic principles of morality.”27
The dilemma seems to arise because of the assumption that a central task of a transitional
regime is to educate the public in the value of the rule of law. On the one hand,
if the rule of law obstructs the pursuit of justice for past wrongs, then the rule of law
will fall into disrepute. On the other, if the rule of law is quite easily sacrificed—
however bad the killings were, they were not on a par with the Holocaust—then, the
value of the rule of law cannot be set very high, and again the educational task fails.
But this formulation is controversial and unhelpful, for it presupposes the positivist
proposition that the rule of law is exclusively about the enforcement of positively
enacted clear rules. And it sets up, as we saw Bohley did, the situation as either/or:
either the rule of positive law or the rule of natural law, that is, the standard of
substantive justice.
As McAdams shows, there was a third way—courts sometimes reasoned on the
basis that the statute expressly stipulated that when guards had to use firearms to
prevent an escape, “if possible” they were to avoid killing.28
And even when courts convicted
on the basis of a judgment that the guard had adopted disproportional means to
prevent the escape, they handed down very mild sentences. The lesson, McAdams suggests,
is that there was an “attractive alternative to the assumption of collective guilt in
East Germany. Some GDR citizens, the policy makers seemed to say through the
medium of the trials, would have to admit to their crimes under the old order. However,
this judgment did not apply to everyone for the simple reason that wrongdoing was
specific and individualizable.”29
And, while McAdams does not go further into the
implications of this lesson for our understanding of the rule of law, he does seem committed
to there being some more subtle alternative to the one that leads to the either/or
formulation.
REVIEW ESSAY 173
26
McAdams, at 51 (footnote omitted).
27
Id.
28
Alexy rejects (wrongly in my view) this option as a “covert kind of retroactivity,” supra note 23,
at 21. It is worth comparing to this option the cases in which West German courts dealt after
reunification with the left-wing terror groups, most notably the Red Army Faction. This issue is
explored in Burkhard Schaefer, Sometimes You Must be Kind to be Cruel: Amnesty between publicae
laetitiae and damnatio memoriae, in LETHE’S LAW: JUSTICE, LAW AND ETHICS IN RECONCILIATION (Emilios
Christodoulides and Scott Veitch, eds., Hart Publishing 2001). (My own contribution to this
volume precludes me from reviewing what is otherwise an obvious choice.)
29
McAdams, at 168.
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It is, in my view, important to pursue the more subtle formulation. The positivist
proposition that the rule of law is exclusively about the enforcement of positively
enacted clear rules excludes the idea that the rule of law is also about the pursuit of justice
in accordance with a set of principles of legality, what the philosopher of law Lon
L. Fuller called “an inner morality of law.”30
The positivist proposition thus excludes the
claim that there was a set of moral standards internal to the law under the old regime
that made culpable individual conduct, especially the conduct of officials, and requires
that we regard the justice of the transition as something special, because it is discontinuous
with both the past and the future. It is discontinuous with the past because the
transition is a radical break with the past, at the end of which one has in place the institutions
that mark the end of the transition and usher in the new era—hence the
radical discontinuity with the future.
The assumption that transitions are radically discontinuous in this way is the
second of the three main assumptions in the debate, the first (as I mentioned) being that
there is something special about transitional justice. In my view, these two assumptions
obscure the contribution of some of the best work in that debate. For example, Teitel
addresses in separate chapters the issues of criminal justice, historical justice, reparatory
justice, administrative justice, and constitutional justice. She provides in each a full
account of the complexity of the issue in a transition, often using case studies and
examples to good effect. Her analysis of the set of legal problems that confront transitional
regimes and the tools available to them is thus indispensable. But it is also based
on the unsupported assumption of discontinuity and the associated idea that the rule of
law in a stable society is apolitical and accords with the positivist proposition.
Similarly, the more exceptional transitions are made to seem and, correspondingly,
the more that truth commissions are made to look like the unique tool for dealing with
these exceptional situations, the greater the temptation to provide the stronger and less
convincing restorative justice accounts of such commissions, and to regard the failure
to adopt the truth commission model as tantamount to being doomed to an unsuccessful
transition. Thus even Priscilla B. Hayner, the leading comparative scholar of truth
commissions, concludes her magisterial and very clear-headed survey of their role by
saying that those countries (most notably Mozambique) that have deliberately opted for
what she recognizes to be good reason to “forget” their past will likely one day have to
adopt a formal process of remembering.31
Far more promising, I believe, is to avoid a view that requires us to think that there
is something exceptional called a “transition” whose contrast is the “static” societies in
which most of those involved in the academic debate about transitional justice live. As
some contributors to the debate have pointed out, for example, Ronald C. Slye and
Sanford Levinson in Rotberg & Thompson, truth commissions and amnesties have their
counterparts in societies that are both stable and democratic.32
The insight here
not only helps to legitimize the work that truth commissions or amnesties might do in
174 REVIEW ESSAY
30
LON L. FULLER, THE MORALITY OF LAW (Yale Univ. Press 1969).
31
Hayner, at 249–54.
32
Ronald C. Slye, Amnesty, Truth, and Reconciliation: Reflections on the South African Amnesty
Process, in Rotberg & Thompson, at 170; Sanford Levinson, Trials, Commissions, and Investigating
Committees: The Elusive Search for Norms of Due Process, in Rotberg & Thompson, at 211.
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transitions, but allows us to draw lessons from those transitions about how our own
societies might more effectively deal with the injustices of the past with which we still
live.
For example, the essays collected in Mendez et al. about the “(un)rule of law” and
the underprivileged in Latin America make sober reading. But while the specific problems
they address about access to justice, racial and gender discrimination, discrimination
against indigenous peoples, the role of the police, reform of the judiciary, pockets
where the violence of the street rules rather than the law, are writ large in Latin
America, they are—at the least—writ small in North America. Similarly, Margaret
Popkin in her excellent account of the obstacles to building the rule of law in
El Salvador argues effectively for the centrality to that process of a judiciary committed
to human rights. But the link between the rule of law and such a judiciary is hardly
uncontroversial in countries such as the United Kingdom that have recently incorporated
human rights instruments into their domestic law.
In conclusion, two of the main assumptions of the transitional justice debate—that
transitions are discontinuous with the past and the future and that there is something
special about transitional justice—are flawed. At most, the drama of what gets called a
transition brings to light problems that are to be found in societies that are hardly static,
even though they are stable. However, I still regard this process of bringing to light and
the work done to understand it as of the highest value, because the third assumption of
that debate is sound.
This assumption is, as the title of Popkin’s book is meant to suggest, and as all the
contributors to Rotberg & Thompson argue, that peace or order without justice is not
worth having, not only from the standpoint of morality, but because such a peace will
not work in the interests of the society. It is worth recalling how even those who try to
stand outside what they think of as the liberal paradigm—Mamdani and Wilson—turn
out to be rejecting the means adopted in a particular transition, rather than the end—
the creation of a culture of the rule of law that is conducive to the protection of human
rights. That brings us to the question not only of how to design our institutions in such
a way as to maintain the rule of law, but of what the rule of law or legality is and what
ends it serves. From the standpoint of legal and political theory, the transitional justice
debate might have its greatest value in the way it requires us to return to those classics
of political theory that present fundamental questions of institutional design. Hence,
my mention earlier of Hobbes’s Leviathan as a kind of textbook of transitional justice.
I also suggested that once we see that the transitional justice debate is part of the
trend of liberalization, we should also be wary of the attempt to construct a transition
in order to fit this trend. We should be concerned lest peace is bought at the price,
pointed out in Randy Newman’s song “Political Science”, of becoming “just another
American town” or even worse an “all-American amusement park”.
Put differently, liberalization has to be wrested from the temptation to equate it with
free-market-driven globalization.The motor of transitions should be human rights constructed
around local understandings and needs with no particular model of how to do
this being touted as of universal application. Rather, and I think much more modestly,
one needs to establish an institutional framework of the rule of law or legality that puts
into place what Fuller thought of as the main point of law—a relationship of reciprocity
between ruler and subject. Only then can the more divisive issues of social justice be
properly debated and projects undertaken to implement the outcomes of those debates.
REVIEW ESSAY 175
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