by Ruti G. Teitel
Summary written by Eric Brahm, Conflict Research Consortium
Citation: Ruti G. Teitel. Transitional Justice. New York, NY: Oxford University Press, 2000.
As transitions to democracy have become more common, transitional justice has become a significant issue in many instances. Teitel takes an interdisciplinary approach to examine key debates surrounding transitional justice problems. Addressing a range of examples from biblical times to the World Wars to transitions accompanying the "Third Wave" of democratization, she discusses a range of measures that have been used to address a legacy of injustice. She views law as a facilitator of change rather than a supporter of the status quo. Throughout the book, she examines the ability of different mechanisms aside from criminal punishment, namely the role of historical inquiries, reparations policies, administrative measures, and constitutional reform to promote justice. Transitional justice, Teitel argues, serves to construct a liberal political identity for the new state: "transitional justice offers a way to reconstitute the collective-across potentially divisive racial, ethnic, and religious lines" (225).
In pointing to the role of law in transitions, she finds fault with the literature that often sees it in black and white terms. Realists view justice as largely epiphenomenal, the product of the balance of forces. Idealists, by contrast, do not account well for the relation of law and political change. "[C]ontrary to the prevailing idealist accounts, law here is shaped by the political circumstances, but, also challenging the prevailing realist accounts, law here is not mere product but itself structures the transition." (6) Teitel argues that law has an extraordinary constitutive role in times of great political change. "It is alternately constituted by, and constitutive of, the transition." (6) In these circumstances, what is deemed just is "contingent and informed by prior injustice." (6) As she shows throughout the book, prior law often shapes the possibilities available. She also discusses how international law provides a continuous and enduring framework in times of change. While many have seen the judiciary as an obstacle to justice where complicit in past crimes, it has also often significant in helping to break with the past by undertaking judicial review and opening avenues of participation.
The author first examines arguments for advancing criminal justice in transitions. Many see punishment as justified in helping to establish a democratic order. However, the ex post facto application of law in many circumstances also runs counter to the rule of law. The legacy of Nuremberg, she discusses, has been paradigmatic in establishing international legal principles to provide continuity and standards and principles of individual responsibility. In comparative perspective, she notes the succession process was often normalized by operating within existing legal systems. Inherent in many of these circumstances, selective justice, or for a variety of reasons not trying all who are equally culpable, may be the only option and this can be justified, as this exists even in normal democratic times. While it may advance a sense of justice, however, it may also be perceived as political justice. The problem of asserting command responsibility is also discussed. There is often insufficient evidence the top leadership ordered crimes to be carried out. In these circumstances, limited sanction may be the best punishment to be realized, which some argue can at least stigmatize. The role of amnesties in transitions is another crucial factor shaping the prospects of criminal punishment. She argues that many of the normative bases of amnesties that have evolved are in fact justifications for the de facto situation.
A second form of justice that has emerged is through various forms of historical inquiry. It has become a popular assumption that examining the past is necessary to restoring the collective in transitional times. She discusses the production of history through trials. Trials, she asserts, are much more compatible with producing history than many supporters of historical inquiry are willing to concede. She argues trials can serve both individual and collective ends. While recognizing that the 'official' truth assumes a degree of democratic consensus that rarely occurs in practice, this does not detract from the potential to contribute to justice. She also addresses the so-called truth vs. justice trade-off. She rejects this either-or view, but rather argues that the question is what sort of 'truth' is to be produced. In exploring the ways in which historical inquiries have sought to deal with different circumstances, she concludes that "[t]he varying transitional responses are not well explained in terms of the prevailing realist perspective, for diverse state responses do not appear to turn on a simple calculus of the balance of power." (97) The goal is the production of a narrative that describes national history as one of a tragedy turned to comedy or romance. She concludes that historical inquiry has more often been transitional rather than foundational for the nation's future.
The book then turns to the realization of justice through reparations. She argues this has been the most common response to a legacy of crimes regardless of political culture. The chapter discusses the evolution of reparations in international relations, which was once something awarded to the nation-state, but is increasingly directed toward individuals. Reparations, she argues, are backward-looking in repairing victims and forward-looking in advancing peace and reconciliation. One of the primary challenges in providing reparations is addressing past wrongs and determining who is eligible. Another important dilemma she brings up is that frequently future generations are called upon to provide reparations or 'affirmative action' -- is this just?
Another common response to try to achieve justice after a legacy of human rights abuses has been through administrative measures. These measures explicitly redistribute power between groups, often covering entire classes of people. "The asserted purpose of the politicized exercise of administrative law is always the noble one of guarding the transition: nevertheless, this use of the law, grounded as it is in categorical judgment, resembles the political justice of totalitarian regimes." (149) She discusses 'Bernays' Brain Child' from Nuremberg in which the use of criminalizing organizations and convicting individuals based on membership and the problems of lustration in East and Central Europe. There is a dilemma in administrative measures at transition. "[I]nsofar as the logic of political conditionality is largely justified in forward-looking terms, the democracy justification seems internally incoherent: For leveling political conditions on individuals based on past behavior largely elides the potential of newly created political institutions." (169) There is a desire to protect the burgeoning democracy, but these measures are illiberal.
Finally, the author considers the role of constitutions in transitional times. Returning to the over simplistic views of realist and idealist views, she finds that constitutions have a reciprocal relationship. Constitutions both shape the transition and are shaped by it. She argues that constitutions at transitions are often explicitly seen as provisional rather than permanent so are not necessarily foundational. Issues are illustrated through discussions of imposed constitutions in Germany and Japan, transitions in Eastern Europe, and the evolution of the American Constitution.