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Justice and truth in transition. (Review Essay).-

Article Excerpt
Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton: Princeton University Press, 2000), 402 pp.

Richard J. Goldstone, For Humanity: Reflections of a War Crimes Investigator (New Haven: Yale University Press, 2000), 152 pp.

Human Rights Watch, Human Rights Watch World Report 2001 (New York: Human Rights Watch, 2001), 540 pp., online at http://www.hrw.org/wr2kl.

Martha Minow, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence (Boston: Beacon Press, 1998), 214 pp.

Ruti G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2000), 292 pp.

Pinochet. Milosevic. Sharon. Kissinger. What have they in common? As agents of the state, each has in turn come under investigation by the agents of one or more other states in connection with alleged war crimes or crimes against humanity. Does lawyers-without-borders activism with its advance on universal jurisdiction herald progress toward ideals of justice beyond the impunity bestowed by state boundaries? Does such activism instead bespeak the chaos of a global legal system wherein initiators of self-help measures run amok in pursuit of foreigners' individual accountability-or local political gain? This enquiry, informed by a non-governmental organization's comprehensive document exposing current human rights abuses, and stimulated by four individually authored, scholarly studies, inelegantly concedes that some of each possibility may be obtained. We conclude untidily that no one holds answers to the perplexities and moral quandaries of bystandership in this troubled world.

Transition Studies

Analyses of societies' quests for justice and truth following oppressive leadership might be termed "transition studies." The transitions in question bear some affinity to what an earlier generation of international relations (IR) scholars called peaceful change. Ordinarily, peaceful change referred to the alteration of control over territory; Norway's separation from Sweden long presented a prized example until postwar decolonization, bequeathing nominally independent new states, offered many more illustrations. Transition, however, emphasizes not alteration of territorial control but the approach to liberalization as delimiting or rightsizing (from failed states to passable states) the scope of governance, democratization and accountability, human rights for minorities to accompany democracy by majority rule, and judicial independence. Justice for, and truths acknowledged about, the ancien regime become cardinal goals during transition. The degree to which societies realize these primary transitional goals of justice and truth shapes the prospect for their emergence as liberal democracies.

Other attributes and dimensions characterize transition studies. Transition takes place within states. It also takes place, hence invites scrutiny, across the global system. (1) Readers of this journal should be especially intrigued because transition studies tend not to disregard institutions. In quests for justice and truth, the respective generic institutions are courts (including ad hoc tribunals) and commissions. International institutions likewise receive probing attention as fulcrums of change. For instance, Human Rights Watch's (HRW) World Report 2001 assesses favorably the International Labour Organization's (ILO) standard setting and follow-up; pioneering this approach is important in an era of economic globalization. Finally, transition studies do not shy from normativity, from considering what ought to exist instead of what actually does, from asking "Why not?" However, students of transition should heed and resist the temptation to infer within changing institutions and norms a teleological forc e leading ineluctably to better human conditions. Politics guides the unfolding of institutions and norms.

Background Notes on Transition

Societies seek to move beyond the aftermath of atrocities when they have moved beyond the regime that perpetrated them. They attempt to come to terms with a barbarous past, immediate or distant. "Until recently," observes Reed Brody, advocacy director of HRW, "it was said that if you kill one person you go to jail; if you kill twenty people you are put in an insane asylum; and if you kill 20,000 people you're invited to a peace conference." (2) Peace conferences continue to occur, as do the wholesale killings of civilians that may precipitate them. Yet peace conferences have opened the way to follow-up efforts by peoples who want to move beyond the cessation of lethal hostilities. And now trials, truth commissions, and related forms of reckoning with human-created disaster proliferate.

A few efforts to reach justice and truth seem truly indigenous. Both the Rwandan successor government's communal gacaca program and its practice of tacit punishment by overcrowded and indefinite imprisonment embody homegrown reactions to the genocide that outsiders refused to avert or stop. (3) Indigenous responses to collective violence may resonate especially readily with motives of revenge. Still, the native-born South African Truth and Reconciliation Commission (TRC) stands as a model for acknowledging truth seeking, if not for enabling the full realization of justice. And according to HRW's Report 2001, local southern Lebanon residents in April 2000 transformed the infamous Khiam prison, where some detainees had been held without charge for fifteen years, into an informal museum complete with a handwritten list of torturers.

Trials and truth-revealing or truth-memorializing undertakings appear to be shaped increasingly by varied kinds of international influence. For instance, prosecutions may take place in states other than the one in which an accused supposedly perpetrated or directed crimes. Today another state's government may summon alleged war criminals or criminals against humanity by extradition proceedings or even by abduction. The Adolf Eichmann case stands not only as a model of justice but also as a precedent in the apprehension of suspects. Manuel Noriega's capture in Panama led to conviction and imprisonment at the order of his conqueror's court in the United States. Spain acted, reluctantly, as what Spanish foreign minister Abel Matutes called the "world's avenger" (justiciero del mundo) by seeking to bring Augusto Pinochet to justice from the United Kingdom. Belgium passed legislation in 1993 that facilitates the trial of foreign figures accused of some crimes; complainants have petitioned for Ariel Sharon to be b rought to justice because of his alleged complicity in the massacres at Sabra and Shatila. And after the Kosovo military action, war crimes charges were brought in local Serbian courts against Bill Clinton, Tony Blair, Jacques Chirac, Madeleine Albright, and Robin Cook (Bass, p. 310).

Such jagged instances of judicial activism may possibly portend a fairer world, one with diminished sustenance for...