Vol 3 No 2

Transitional Justice Special Issue

Dear Readers,

2018 marked the 20th anniversary of the Rome Statute, the founding treaty of the International Criminal Court (ICC). In 1998, the Rome Statute promised a permanent and independent Court that would put an end to “unimaginable atrocities”. The establishment of the ICC is seen by many scholars as the jewel in the crown of international criminal justice (see Stephen, 2012, p.73). Although it is the subject of much criticism, many would find it difficult to say that the creation of such an institution could even be conceivable in today’s political climate.

No development has symbolised the globalisation of criminal transitional justice more poignantly than the establishment of a permanent International Criminal Court. The ICC has made transitional justice a “routine matter under international law” (Teitel, 2014, pp.64-65). Accountability for gross human rights violations became a top issue on the international political agenda in the 1990s, once the Cold War came to an end. It was the time when its sister-discourse of “good governance” became prevalent too, and a time when liberal states sought to empower themselves as legitimate bearers and enforcers of the idea of anti-impunity. Historically, however, dealing with perpetrators of past gross human rights abuses was a domestic concern of societies seeking to come to terms with past abuses committed during civil war or under authoritarian regimes (see the cases of Brazil, Argentina, Chile, South Africa, Uganda and El Salvador in the 1980s; Sikkink, 2011).

Although legal obligations to prosecute perpetrators of mass atrocities have existed for many years, enshrined in customary international law and international conventions, impunity was rather the norm. For instance, in the 1970s and 1980s, blanket pre-conviction amnesties by governments were common practice in countries such Chile, Peru and El Salvador (Roth-Arriaza, 1996, pp.93-94). Many justice efforts during this time took the form of truth commissions that sought to expose crimes and reconcile communities. In former communist states, the end of the Cold War marked the start of the processes of opening the files of government bureaucracies, especially the secret police (Schiff, 2008, p.30). Regardless of where these crimes occurred and states’ ideological position during the Cold War, transitional justice was considered a domestic issue and did not necessarily include a criminal accountability response. As Karen Engle (2017, pp.15-16) highlights, the human rights movement’s explicit fight against impunity is new; it only started in the 1990s.

It is only after the establishment of the ICTY and ICTR, and subsequent hybrid courts, that we can talk of the institutionalisation of international criminal accountability and the emergence of international criminal justice for mass atrocities as a routine practice. Whether prosecutions for international crimes are pursued through international, mixed or domestic tribunals, criminal accountability is now generally seen as a legally required component of transitional justice. This shift is part of a wider trend in transitional justice that is “more and more normalised and aimed at advancing the ongoing goals of global rule of law” (Teitel, 2014, p.41).

One of the challenges and risks that flow from the globalisation and routinisation of transitional criminal justice is its bureaucratisation. Transitional justice has become a process that is increasingly formulated by technocratic elites, in global, universal terms, which are insufficiently informed by local politics (Teitel, 2014, p. xvii). What this tells us about the current nature of transitional justice remains a question to be further examined since, traditionally, transitional justice has been a politically charged field that emerged out of the needs of victims and their activism. But as transitional justice has become more internationalised, technical, and decontextualised, it has lost touch with the root causes of violence and shifted its focus away from the need to interrogate and change domestic power hierarchies. Considering the importance of this mutation in the nature of transitional justice, we thought it was appropriate to dedicate a Special Issue to this subject.

The issue opens with a foreword signed by Dr Lars Waldorf that critically interrogates the nature of transitional justice as transitional object, and a foreword by Dr Ingrid Roestenburg-Morgan on the future of transitional justice and the role and value of traditional justice mechanisms for the ICC. The issue continues with Domenico Carofiglio’s article analysing the role of transitional justice as a tool that establishes a link between the particular and the universal. Using examples from Nigeria and East-Timor, Carofiglio illustrates how tension between the global and the local appears, and the outcome when either one dominates the justice process. Moving on, Anna Skinner analyses Kenya’s response to the 2007-2008 violence, specifically the success of transitional justice approaches for achieving peace and reconciliation. In doing so, she explores the important role that Kenya’s socio-political context played in the post-election violence, such as Kenya’s history of societal restructuring.

Similarly, Alisha Lakhani analyses the abuse of transitional justice mechanisms in Kenya after the 2007 elections and in Rwanda following the 1994 genocide. From a constructivist perspective, Lakhani argues that transitional justice is a definitional project, which leaves it vulnerable to abuse. Finally, in her article, Salomé Wyns identifies factors contributing to the International Criminal Court’s perceived lack of credibility and assesses how these factors may hinder the successful conviction of perpetrators of mass atrocities. Through an analysis of the violent aftermath of the Kenyan general elections in 2007, Wyns argues that the ICC’s lack of credibility stems from its inherent structural contradictions which seem to limit its prosecutorial independence and impartiality.

The common thread that runs through this issue’s articles is the emphasis on the importance of transitional justice frameworks that go beyond criminal justice responses and put issues related to structural power, truth finding, reparations, and guarantees of non-recurrence on center stage. Whilst there is a growing consensus that states have a responsibility to investigate, prosecute and punish perpetrators of mass atrocities, questions about what meaningful justice is and what transitional justice means today remain open.  This issue provides an avenue for young voices to contribute to this ever-important debate.

The Editorial Board

Note: All opinions expressed in this publication represent those of the authors. They do not necessarily reflect the opinions or views of the Responsibility to Protect Student Journal and its team.

Bibliography

Engle, K. 2017. ‘A Genealogy of the Criminal Turn in Human Rights’. In: Karen Engle, Zinaida Miller and Mathias D. Davies, Anti-Impunity and the Human Rights Agenda. Cambridge: Cambridge University Press.

Nesiah, V. 2017. ‘Doing History with Impunity’, In: Karen Engle, Zinaida Miller and Mathias D. Davies, Anti-Impunity and the Human Rights Agenda, Cambridge: Cambridge University Press.

Roth-Arriaza, N. 1996. ‘Combating Impunity: Some Thoughts on the Way Forward’, Law and Contemporary Problems, 59(4), p. 93-94.

Stephen, C. 2012. ‘International Criminal Law: Wielding the Sword of Universal Criminal Justice?’, International and Comparative Law Quarterly, 61(1), p. 73.

Sikkink, K. 2011. The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics, New York, London: W.W. Norton.

Schiff, B. 2008. Building the International Criminal Court, Cambridge: Cambridge University Press.

Sriram, Ca. 2005. Globalising Justice for Mass Atrocities: A Revolution in Accountability. London and New York: Routledge.

Teitel, R. 2014. Globalising Transitional Justice. New York: Oxford University Press.

This issue was originally published under our previous title, the Responsibility to Protect Student Journal.

Articles