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democratic deliberation that properly belong to the political community directly
affected by the crimes in question. John Bolton seemed to have something like
this in mind when he denounced the European proceedings against General
Pinochet on the asserted ground that, “Morally and politically, what Pinochet’s
regime did or did not do is primarily a question for Chile to resolve.”
67
This
critique presumes that questions of punishment belong not to humanity writ
large, but to particular communities – above all, to the society most affected by
the crimes in question.
This view directly challenges two core justifications of universal jurisdiction:
(1) because certain crimes offend humanity writ large, there is a global entitle-
ment to bring perpetrators to account; and (2) unless every state assumes
responsibility to prosecute the perpetrators of such crimes, many will likely
elude the net of justice. Against these claims, critics say that universal jurisdic-
tion has gone too far. If Nuremberg was justified, they argue, contemporary
prosecutions push a noble effort “to extremes that risk substituting the tyranny
of judges for that of governments.”
68
Before I challenge this statement, however,
I will show why it merits close consideration.
Upending democratic deliberations?
Such questions as what behavior should be criminalized and when and how indi-
viduals should be punished matter deeply to the community in whose midst the
conduct in question occurs. The claim that questions of punishment belong to
particular communities has special significance when the crimes in question
arise from a pattern of severe repression. Whether a country tries to bury past
depredations in a grave of silence, examines and condemns them through the
work of an officially sanctioned truth commission,
69
purges from public office
those determined to have been responsible for systemic repression, provides
reparations to victims, and/or punishes the perpetrators, the path it chooses is
constitutive of its political community.
Tellingly, the phrase “transitional justice” has become a term of art for pol-
icies of justice devised by societies emerging from repressive governance.
70
Governments that succeed brutal regimes may see criminal trials and other pro-
grams of transitional justice as vehicles for the “construction of a permanent,
unmistakable wall between the new beginnings and the old tyranny.”
71
The
deliberations surrounding a program of transitional justice are not the sort that
should be displaced by the paternalistic judgment of international law (though I
want to reserve for now the question whether universal jurisdiction has any such
effect). It is not simply the case that reckoning with past crimes is a matter of
unique interest to the community that endured abominations. Societies that have
been governed though wholesale repression bear a special burden of reckoning,
deriving from both moral and practical imperatives.
Morally, their burden stems from what Karl Jaspers called “political guilt.” In
Jaspers’s lexicon, political guilt, “involving the deeds of statesmen and of the
DIANE F. ORENTLICHER
214
citizenry of a state, results in my having to bear the consequences of the state
whose power governs me and under whose order I live.”
72
Homegrown justice
represents at least partial payment of a country’s debt to citizens previously
denied protection of the law.
Functionally, transitional justice serves as a vehicle of social and political
transformation. By instituting criminal trials or pursuing other policies of transi-
tional justice, a government condemns brutal policies of its predecessor and
signals the dawning of a new era. Transitional justice also aims at repairing soci-
eties that have endured unspeakable crimes. A key aim of such programs is to
restore citizens’ capacity to be citizens, in part by establishing or restoring
public trust in government. Finally, we may be most confident that a country
will not once again descend into the abyss of wholesale repression if it addresses
past abuses through its own policies of reckoning and repair.
73
Do transnational processes undermine democratic
deliberations? A challenge
If the conservative critique finds support in these considerations, it nonetheless
suffers from flawed assumptions and faulty reasoning. We should not uncriti-
cally accept the claim that Pinochet’s self-amnesty was freely endorsed by a
full-fledged democracy. After all, while preparing to relinquish power, Pinochet
credibly threatened military force in the event his self-amnesty was challenged.
74
To deliberate under the threat of destabilizing force is hardly an ideal exercise in
self-government. More fundamentally, the claim that universal jurisdiction
improperly disturbs policy choices resulting from democratic deliberations
falsely assumes that political communities decide how to confront past atrocities
in a hermetically sealed universe. This assumption is problematic at several
levels. To begin, as legal and international relations scholars have recognized,
transnational political and social processes are constitutive of the values that
shape both domestic and international law and policy.
75
It is not simply the case
that domestic politics define state preferences, which are then advanced by a
state’s diplomatic representatives in their negotiations with representatives of
other countries.
76
Rather, interactions across borders often shape participants’
values in ways that define their international negotiating positions. In turn, the
international norms constructed through these processes, such as the notion that
torturers should be punished, loop back into domestic political and lawmaking
processes.
The charge that European proceedings against Augusto Pinochet supplanted
Chileans’ national process of reckoning with his crimes obscures the active par-
ticipation of Chileans in the transnational legal processes underlying the
Pinochet case. Notably, the Spanish investigation that led to Pinochet’s arrest
was triggered by Chilean victims of Pinochet-era crimes (some possessing dual
Spanish–Chilean citizenship).
Further, dire warnings about the destabilizing effects of the European
WHOSE JUSTICE?
215
proceedings were belied by their salutary impact. The decisions of judges in
Madrid and London had a transformative impact on judges and prosecutors else-
where, exemplifying what Harold Koh calls the “normativity” of transnational
lawmaking processes.
77
The unexpected success of the pursuit of Pinochet in
turn inspired judges throughout Latin America,
78
as well as Europe and Africa,
to pursue dictators previously thought to be legally untouchable.
The most profound reverberations of the European proceedings were in
Chile. On December 1, 2000, Chilean judge Juan Guzmán formally charged
Pinochet with the kidnapping of political opponents in the aftermath of the 1973
coup that brought Pinochet to power and placed the former president under
house arrest.
79
To be sure, even before Pinochet was arrested in England,
Chilean society had made significant progress in its national process of reckon-
ing with his crimes, but proceedings abroad had a catalytic effect in Chile.
80
The
New York Times reported that the case that led to Pinochet’s house arrest in
Chile “began to gain currency in Chile only after General Pinochet [had been]
arrested two years [earlier] in London on a Spanish warrant.”
81
Far from displac-
ing Chile’s internal project of addressing its past, then, the arrest abroad of
General Pinochet reenergized Chile’s process of recovering from dictatorship,
fortifying its democratic transition. The possibility that Pinochet could be prose-
cuted outside Chile did not diminish or circumvent that country’s democratic
deliberations, but rather enlarged the space within which Chilean society could
address its past.
Nor is Chile an isolated example. In August 2003, for example, both houses
of Argentina’s congress voted to annul two 1980s-era amnesty laws. This action
has been attributed in part to Spanish magistrate Baltasar Garzón’s issuance
of warrants seeking the extradition of 45 Argentine military officers and one
civilian.
82
Against these developments, the conservative critique of the Pinochet case
seems not so much implausible as impoverished. In larger perspective, it would
be a mistake to suppose that Chilean society exists, deliberates, and determines
its democratic destiny in isolation from transnational processes. Thus to suggest
that Chile should determine Pinochet’s fate without hindrance from outsiders
misses a crucial point: how Chileans exercise their moral autonomy is partly a
function of their participation in transnational normative processes.
Acknowledgments
This chapter is adapted from Diane F. Orentlicher, “Whose Justice? Reconciling
Universal Jurisdiction with Democratic Principles,” Georgetown Law Journal
vol. 92 (2004), pp. 1057–134. I am grateful to Gregg Bloche, Reed Brody,
Richard Falk, Tom Farer, Mark Feldstein, Claudio Grossman, Darren Hutchin-
son, Steve Macedo, Andy Moravcsik, Jonathan Sarnoff, Anne-Marie Slaughter,
and Rick Wilson for providing comments on earlier drafts, sharing their insights,
and making other contributions to the article from which this chapter is adapted,
DIANE F. ORENTLICHER
216
and to Christian De Vos, Richard Hamilton, Helen Harnett, Jamal Jafari, Rosy
Lor, Jason Maddux, William Martin, and Danica Szarvas-Kidd for first-rate
research assistance. I am also grateful to Princeton University’s Program in Law
and Public Affairs, which awarded me a fellowship during the academic year
2000–1, the US Institute of Peace, which provided a research grant during the
same period, both enabling me to begin work on the larger research project of
which this chapter forms a part, and to the Washington College of Law of Amer-
ican University for supporting my scholarship in myriad and indispensable
ways.
Notes
1 See “Britain Arrests Pinochet to Face Charges by Spain,” New York Times, October
18, 1998.
2 See Stephen P. Marks, “The Hissène Habré Case: The Law and Politics of Universal
Jurisdiction,” in Stephen Macedo, ed., Universal Jurisdiction: National Courts and
the Prosecution of Serious Crimes Under International Law (Philadelphia: Univer-
sity of Pennsylvania Press, 2003), pp. 131–67; Human Rights Watch, “The Case
Against Hissène Habré, an ‘African Pinochet,’” available online at www.hrw.org/
justice/habre.
3 See “Rwandan Nuns Jailed in Genocide; Belgian Jury Also Sentences Two Others,”
Washington Post, June 9, 2001; “Mother Superior Guilty in Rwanda Killings,” New
York Times, June 9, 2001.
4 See Diane F. Orentlicher, “Whose Justice? Reconciling Universal Jurisdiction with
Democratic Principles,” Georgetown Law Journal vol. 92 (2004), p. 1060.
5 “Israel Rejects Belgian Court Ruling on Sharon,” New York Times, February 14, 2003;
“Israel Seeks to Counter Belgian ‘War Crimes’ Ruling,” The Forward (New York),
February 20, 2003; “Israel Scorns ‘Anti-Semitic Little Belgium’; Furious Backlash
After Court Rules Against Sharon,” Guardian (London), February 14, 2003.
6 See “Belgium Rethinks Its Prosecutorial Zeal,” New York Times, April 1, 2003.
7 See “Belgian War Crimes Law Undone by Its Global Reach; Cases Against Political
Figures Sparked Crises,” Washington Post, September 30, 2003.
8 See “Rumsfeld Says Belgian Law Could Imperil Funds for NATO,” Washington
Post, June 13, 2003; “NATO Agrees to U.S. Proposals to Revamp Alliance,” New
York Times, June 13, 2003.
9 Belgium’s Amendment to the Law of 15 June 1993 (as amended by the Law of 10
February 1999 and 23 April 2003) Concerning the Punishment of Grave Breaches of
Humanitarian Law, Art. 18, unofficial translation, 42 I.L.M. 1258, 1267–68 (2003).
10 See “Belgian War Crimes Law Undone.”
11 “NATO Agrees to U.S. Proposals to Revamp Alliance.”
12 Jack Goldsmith and Stephen D. Krasner, “The Limits of Idealism,” Dædalus (Winter
2003), p. 51.
13 Ibid.
14 See Curtis A. Bradley and Jack L. Goldsmith, “Customary International Law as
Federal Common Law: A Critique of the Modern Position,” Harvard Law Review
vol. 110 (1997), pp. 840–1.
15 See Kenneth C. Randall, “Universal Jurisdiction Under International Law,” Texas
Law Review vol. 66 (1988), pp. 800–15.
16 See Michael Kirby, “Universal Jurisdiction and Judicial Reluctance: A New ‘Four-
teen Points,’” in Macedo, Universal Jurisdiction, p. 250.
WHOSE JUSTICE?
217
17 See Goldsmith and Krasner, “Limits of Idealism,” pp. 50–1. See also Jeremy Rabkin,
“International Law vs. the American Constitution: Something’s Got to Give,” The
National Interest (Spring 1999), pp. 33–4.
18 Goldsmith and Krasner, “Limits of Idealism,” p. 51.
19 See, for example, Bradley and Goldsmith, “Customary International Law,”
pp. 857–9.
20 See, for example, Henry A. Kissinger, “The Pitfalls of Universal Jurisdiction,”
Foreign Affairs vol. 80, no. 4 (July–August 2001), pp. 86–96; Rabkin, “International
Law vs. the American Constitution,” p. 30.
21 See generally, Diane F. Orentlicher, “Settling Accounts: The Duty to Prosecute
Human Rights Violations of a Prior Regime,” Yale Law Journal vol. 100 (1991), pp.
2537–615.
22 See Harold Hongju Koh, “Transnational Public Law Litigation,” Yale Law Journal
vol. 100 (1991), p. 2349, n. 9.
23 S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 113-122 (December 10, 1984).
24 Ibid., Art. 2(1).
25 See Regina R. v. Bow St. Metro. Stipendiary Magistrate, ex parte Pinochet Ugarte
(No. 3) (2000) 1 A.C. 147, 198 (H.L. 1999), reprinted in 38 I.L.M. 581, 589 (1999)
(hereinafter Pinochet III) (opinion of Lord Browne-Wilkinson).
26 See ibid., p. 220 (opinion of Lord Goff).
27 See, for example, ibid., p. 241 (opinion of Lord Hope).
28 See, for example, ibid., pp. 255–7 (opinion of Lord Hutton).
29 See, for example, ibid., p. 198 (opinion of Lord Browne-Wilkinson).
30 J. H. H. Weiler, “Does Europe Need a Constitution? Demos, Telos, and the German
Maastricht Decision,” European Law Journal vol. 1 (1995), p. 222.
31 See, for example, United Nations, Universal Declaration of Human Rights, Art. 21,
GA Res. 217A, UN GAOR, 3rd Sess., pt. 1, 183rd plenary meeting, p. 75, UN Doc.
A/810 (1948); International Covenant on Civil and Political Rights, Art. 25 (Decem-
ber 16, 1966), S. Exec. Doc. 95-2, 999 U.N.T.S. 171.
32 See, for example, Protocol to the European Convention for the Protection of Human
Rights and Fundamental Freedoms (as amended by Protocol No. 11), Art. 3, signed
at Paris March 20, 1952, entered into force May 18, 1954, 213 U.N.T.S. 262, E.T.S.
9; American Convention on Human Rights, Art. 23, concluded at San José November
22, 1969, entered into force July 18, 1978, 1144 U.N.T.S. 123, O.A.S.T.S. No. 36;
African Charter on Human and Peoples’ Rights, Art. 13, concluded at Banjul June
26, 1981, entered into force October 21, 1986, OAU Doc. CAB/LEG/67/3 Rev. 5,
reprinted in 21 I.L.M. 59 (1982).
33 See generally, Thomas M. Franck, “The Emerging Right to Democratic Gover-
nance,” American Journal of International Law vol. 86 (1992), pp. 46–91; See also
Diane F. Orentlicher, “Democratic Principles and Separatist Claims: A Response and
Further Inquiry,” in Stephen Macedo and Allen Buchanan, eds, NOMOS: Secession
and Self-Determination, vol. 45 (New York: New York University Press, 2003), pp.
77–86.
34 Compare W. Michael Reisman, “Editorial Comment: Sovereignty and Human Rights
in Contemporary International Law,” American Journal of International Law vol. 84
(1990), p. 867.
35 The legal proceedings are described in greater depth in Orentlicher, “Whose Justice?”
pp. 1070–86.
36 Pinochet III.
37 See Orentlicher, “Whose Justice?” pp. 1084–6 (summarizing opinions in Pinochet
III).
38 Known in international law as immunity ratione materiae, this type of immunity is
DIANE F. ORENTLICHER
218
associated with the official nature of particular acts rather than with an incumbent
official’s status and persists even after an individual ceases to hold his or her official
position.
39 See Orentlicher, “Whose Justice?” pp. 1081–2.
40 See Jane S. Schacter, “Metademocracy: The Changing Structure of Legitimation in
Statutory Interpretation,” Harvard Law Review vol. 108 (1995), p. 594; William N.
Eskridge Jr, “Dynamic Statutory Interpretation,” University of Pennsylvania Law
Review vol. 135 (1987), pp. 1498–9; Barry Friedman, “Dialogue and Judicial
Review,” Michigan Law Review vol. 91 (1993), p. 588; Steven L. Winter, “An
Upside/Down View of the Countermajoritarian Difficulty,” Texas Law Review vol.
69 (1991), p. 1925.
41 Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar
of Politics, 2nd edn (New Haven: Yale University Press, 1986), p. 16.
42 See Schacter, “Metademocracy,” pp. 598–9.
43 See, for example, Jesse H. Choper, “The Supreme Court and the Political Branches:
Democratic Theory and Practice,” University of Pennsylvania Law Review vol. 122
(1974), p. 815; Winter, “An Upside/Down View,” p. 1920; Darren Lenard Hutchin-
son, “The Majoritarian Difficulty: Affirmative Action, Sodomy, and Supreme Court
Politics,” Law & Inequality vol. 23 (2005), pp. 13–20.
44 See William N. Eskridge Jr, “Politics Without Romance: Implications of Public
Choice Theory for Statutory Interpretation,” Virginia Law Review vol. 74 (1988),
pp. 285–95; Cass R. Sunstein, “Interest Groups in American Public Law,” Stanford
Law Review vol. 38 (1985), pp. 48–9; Erwin Chemerinsky, “Forward: The Vanishing
Constitution,” Harvard Law Review vol. 103 (1989), pp. 77–81; Hutchinson,
“Majoritarian Difficulty,” pp. 13–15.
45 See, for example, Friedman, “Dialogue and Judicial Review,” p. 590; Barry Fried-
man, “The Birth of an Academic Obsession: The History of the Countermajoritarian
Difficulty, Part Five,” Yale Law Journal vol. 112 (2002), p. 166; Hutchinson,
“Majoritarian Difficulty,” pp. 15–20.
46 See Orentlicher, “Whose Justice?” p. 1094, n. 196.
47 Hutchinson, “Majoritarian Difficulty,” p. 18.
48 Bickel, Least Dangerous Branch, p. 240; Friedman, “Dialogue and Judicial Review,”
pp. 653, 655.
49 See Hutchinson, “Majoritarian Difficulty,” p. 16, and sources cited in n. 95; Fried-
man, “Dialogue and Judicial Review,” p. 672; Winter, “An Upside/Down View,”
pp. 1920, 1925–26.
50 See Friedman, “Dialogue and Judicial Review,” p. 608; Hutchinson, “Majoritarian
Difficulty,” pp. 16–17.
51 See Choper, “Supreme Court and the Political Branches,” p. 848. Compare Louis
Michael Seidman, “Ambivalence and Accountability,” Southern California Law
Review vol. 61 (1988), p. 1587.
52 Robert M. Cover, “Forward: Nomos and Narrative,” Harvard Law Review vol. 97
(1983), p. 17.
53 See Pablo de Greiff, “Comment: Universal Jurisdiction and Transitions to Demo-
cracy,” in Macedo, Universal Jurisdiction, p. 126.
54 Harold Koh, “Commentary: Is International Law Really State Law?” Harvard Law
Review vol. 111 (1998), pp. 1852–3.
55 See Cover, “Nomos and Narrative,” p. 38; Robert M. Cover, “Violence and the
Word,” Yale Law Journal vol. 95 (1986), p. 1602, n. 2.
56 See Owen M. Fiss, “Objectivity and Interpretation,” Stanford Law Journal vol. 34
(1982), p. 745.
57 Cover, “Nomos and Narrative,” pp. 4, 33.
WHOSE JUSTICE?
219
58 See, for example, United Nations, Independent Study on Best Practices, Including
Recommendations, to Assist States in Strengthening Their Domestic Capacity to
Combat All Aspects of Impunity, by Professor Diane Orentlicher, UN Doc.
E/CN.4/2004/88 (February 27, 2004), p. 17, para. 50.
59 See Statute of the International Court of Justice (June 26, 1945), Art. 38(1)(b), 59
Stat. 1031, p. 1060, T.S. No. 993, 3 Bevans, 1153, p. 1179.
60 Orentlicher, “Whose Justice?” p. 1131, and n. 378.
61 See ibid., pp. 1111–15.
62 See Anne-Marie Slaughter, A New World Order (Princeton: Princeton University
Press, 2004), pp. 65–103; Amnon Reichman, “‘When We Sit to Judge We Are Being
Judged’: The Israeli GSS Case, Ex Parte Pinochet and Domestic/Global Delibera-
tion,” Cardozo Journal of International and Comparative Law vol. 9 (2001),
pp. 41–103; Anne-Marie Slaughter, “Judicial Globalization,” Virginia Journal of
International Law vol. 40 (2000), pp. 1103–24. See also “Thinking Outside the
U.S.,” Washington Post, August 4, 2003.
63 Eskridge, “Dynamic Statutory Interpretation,” p. 1537. See also Fiss, “Objectivity
and Interpretation,” pp. 744–7.
64 J. H. H. Weiler, “A Quiet Revolution: The European Court of Justice and Its Inter-
locutors,” Comparative Political Studies vol. 26 (1994), p. 521.
65 See Goldsmith and Krasner, “Limits of Idealism,” p. 51; Rabkin, “International Law
vs. the American Constitution,” p. 33.
66 See David L. Bosco, “Dictators in the Dock,” American Prospect vol. 11, no. 18
(August 14, 2000), p. 29.
67 American Servicemembers’ Protection Act: Hearing on H.R. 4654 Before the House
Committee on International Relations, 107th Cong. (2000) (testimony of John R.
Bolton, then senior vice president of the American Enterprise Institute), July 25,
2000; Kissinger, “Pitfalls of Universal Jurisdiction,” pp. 86, 90–9.
68 Ibid., p. 86.
69 See Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity
(New York: Routledge, 2001), p. 14. See also United Nations, Updated Set of Prin-
ciples for the Protection and Promotion of Human Rights Through Action to Combat
Impunity, UN Doc. E/CN.4/2005/102/Add.1 (February 18, 2005), p. 6.
70 See, for example, United Nations, Report of the Secretary-General: The Rule of Law
and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc.
S/2004/616; Neil J. Kritz, ed., Transitional Justice: How Emerging Democracies
Reckon with Former Regimes (Washington, DC: US Institute of Peace, 1995); Ruti
G. Teitel, Transitional Justice (New York: Oxford University Press, 2000).
71 Otto Kirchheimer, Political Justice: The Use of Legal Procedures for Political Ends
(Princeton: Princeton University Press, 1961), p. 308
72 Karl Jaspers, The Question of German Guilt (1947), translated by E. B. Ashton (New
York: Fordham University Press, 2001), p. 25.
73 See Orentlicher, “Whose Justice?” pp. 1120–3.
74 See Cynthia Brown, Chile in Transition: Human Rights Since the Plebiscite,
1988–89 (New York: Americas Watch, 1989), p. 73.
75 Judith Goldstein and Robert O. Keohane, eds, Ideas and Foreign Policy (Ithaca:
Cornell University Press, 1993). See also Ernst B. Haas, When Knowledge Is Power
(Berkeley: University of California Press, 1990), p. 2; Diane F. Orentlicher, “The
Power of an Idea: The Impact of United States Human Rights Policy,” Transnational
Law and Contemporary Problems vol. 1 (1991), pp. 43–79; Kathryn Sikkink, “The
Power of Principled Ideas: Human Rights Policies in the United States and Western
Europe,” in Judith Goldstein and Robert Keohane, eds, Ideas and Foreign Policy
(Ithaca: Cornell University Press, 1993) p. 139.
DIANE F. ORENTLICHER
220
76 See Martha Finnemore, National Interests in International Society (Ithaca: Cornell
University Press, 1996), p. 128.
77 Harold Hongju Koh, “Transnational Legal Process,” Nebraska Law Review vol. 75
(1996), p. 184. See Siegfried Wiessner and Andrew R. Willard, “Policy-Oriented Juris-
prudence and Human Rights Abuses in Internal Conflict: Toward a World Public Order
of Human Dignity,” American Journal of International Law vol. 93 (1999), p. 330.
78 See “’Pinochet Effect’ Spreading; Case Opens Way to Other Prosecutions,” Wash-
ington Post, August 5, 2000.
79 See “Pinochet’s Arrest Ordered by Judge,” New York Times, December 2, 2000. See
Orentlicher, “Whose Justice?” p. 1070, n. 78, p. 1126, n. 362.
80 See Richard A. Falk, “Assessing the Pinochet Litigation: Whither Universal Jurisdic-
tion?” in Macedo, Universal Jurisdiction, p. 103.
81 Reed Brody, “Justice: The First Casualty of Truth? The Global Movement to End
Impunity for Human Rights Abuses Faces a Daunting Question,” The Nation (April
30, 2001), pp. 25–6; “High Court Voids Charges for Pinochet; Sets New Date,” New
York Times, December 21, 2000; Tina Rosenberg, “Editorial Observer: In Chile, the
Balance Tips Toward the Victims,” New York Times, August 22, 2000.
82 See United Nations, Independent Study on Best Practices, p. 12, para. 30, pp. 17–18,
para. 51; Ellen Lutz and Kathryn Sikkink, “The Justice Cascade: The Evolution and
Impact of Foreign Human Rights Trials in Latin America,” Chicago Journal of Inter-
national Law vol. 2 (2001), pp. 1–33.
WHOSE JUSTICE?
221
14
BRINGING SECURITY BACK IN
International relations theory and moving
beyond the “justice versus peace” dilemma in
transitional societies
Chandra Lekha Sriram and Youssef Mahmoud
Introduction: peace, justice, and international relations
theory
While transitional justice, domestic and international, has been the subject of an
expansive literature, particularly since the political transitions of the 1990s, until
recently it has not been a topic of direct interest to international relations (IR)
scholars or theorists.
1
However, recent books and articles have begun to examine
the challenges of transition, and specifically the virtues and vices of prosecutions
and other punitive forms of accountability, through the lenses of theories of
international relations, such as realism, liberalism, and constructivism.
2
Theo-
rists have attempted to transform theories of systems, structures, and agencies in
international politics, then, into ones that can help to describe the workings and
needs of polities after significant violence and atrocities. In this chapter, we will
briefly discuss the insights of each of these theories, before turning to a specific
case, that of the peace process and hybrid tribunal in Sierra Leone. What we find
is that key insights from realism, couched as pragmatism, are of great import-
ance in addressing the needs of transitional societies. However, we argue that
realism, like the other theories, does not take a nuanced view of security. Specif-
ically, while a core dilemma for transitional societies is that punishment for past
gross human rights abuses may generate instability by provoking retaliation,
particularly by armed groups or state security forces, none of these theories seri-
ously engage in consideration of how to prevent or control reactions by these
groups in the short and long term. That said, the UN and other actors supporting
transitions to peace recognize the importance of accountability for past crimes
notwithstanding possible destabilizing effects that this might have. What is vital,
then, is to fashion peacebuilding strategies that can achieve accountability while
simultaneously limiting the likelihood of instability. This requires going beyond
any simple “justice versus peace” dichotomies.
222
This means that even perpetrators of atrocities must often be treated seriously
as agents to be engaged, and not simply in the negotiation of war termination.
They must be assisted to transform themselves into participants in society again,
whether as civilians or as rights-respecting security forces. Such engagement,
through programs of disarmament, demobilization, and reintegration (DDR),
and through programs of military and police reform, constitute a critical but
often overlooked element of transition. The absence of such transformative pro-
grams may virtually ensure that trials provoke backlash, and they may often
need to take priority over any accountability mechanisms. Their presence may
provoke tension in the short term, but eventually promote stabilization and in
some instances even enable accountability. In Sierra Leone, there were initial
fears that the institution of a hybrid tribunal and overriding of an agreed amnesty
could provoke instability. Some therefore argued that the tribunal was prema-
ture, and that its institution ought to have been delayed to allow the country to
stabilize. However, it also appears that the relatively rapid implementation of the
DDR program helped to limit the possible repercussions of trials in Sierra
Leone. Nonetheless, as field research illustrates, there remains significant cause
for concern that the security situation will not remain stable, particularly after
the withdrawal of the United Nations Mission in Sierra Leone (UNAMSIL) and
the reduced presence of other international actors.
The problem of postconflict justice
After countries emerge from armed conflict, severe political repression, or
serious political violence, internal and external pressure invariably emerges to
impose accountability in some way upon the perpetrators of the most serious
human rights violations or violations of the laws of war. These may occur
through domestic, international, or hybrid mechanisms, and may involve prose-
cutions, truth commissions, lustration or vetting, amnesties, and on occasion all
of the above. Regardless of the tools used, and the presence or absence of the
international community in the development of responses, postconflict justice
requires grappling with what is often referred to as the “peace–justice
dilemma.”
3
Simply put, while there are often strong demands, both within a
society emerging from conflict and by the international community, for some
form of accountability for perpetrators, there is simultaneously a concern that
such a pursuit for justice may bring about a backlash. It is feared that such per-
petrators, particularly those who are armed, whether government military or
police forces, militias, or nonstate armed groups, might renege on agreements
and return to the use of violence if their members are threatened with prosecu-
tion. Thus there are those who contend that in order to maintain stability, and
pave the way for the (re)installation of a functioning democratic state capable of
upholding the rule of law, it might be necessary to condone amnesties.
4
Alterna-
tively, there are those who would argue that some form of accountability is
necessary in order to support stability and the rule of law. Prosecutions, it is
BRINGING SECURITY BACK IN
223