Critical Issues in Transitional Justice

Abstract

These papers emerge from an edition of the journal Human Rights and International Legal Discourse that will be published in 2017. These papers respond to the fact that over the last twenty five years or so, in the wake of numerous political transitions around the world and many processes to deal with the past, transitional justice (TJ) as a field of study is recognised as coming of age. TJ is not uncontroversial or without criticism. Transitional justice is criticised on many fronts. In fact the field of study, in spite of it being cross-cutting, has at times faced a barrage of criticisms, from within, as well as from those outside. Those criticisms are of two major types, first that theoretically it is problematic, and secondly, that it is misapplied, or of little or no relevance to the circumstances it is applied to. Some see TJ as a soft option in societies in transition, that it is used by those particular states who do not seek accountability and do not want to have (m)any prosecutions. Amnesty is a thorn in the side of transitional justice, as many see it as a critical feature of transitions that promotes impunity for serious human rights violations. While TJ is widely used, worked on, and seen to be an important issue, many continue to criticise it. Some of that criticism is political in nature in that the critiques have a political agenda for embarking on the criticism (the recent withdrawal by some African States from the International Criminal Court (ICC) is certainly an interesting illustration of that). Others criticise because of the dominance of law and lawyers in the field. Still others criticise because it is in the nature of academia to find fault and suggest alternative approaches. This is not to argue that many of the criticisms do not have a legitimate basis. Many however criticise from an ivory tower perspective. It is true that TJ suffers from an overreliance on a legal approach but this needs to be understood by the fact that law underpins state approaches to deal with the subject matter that falls within its remit. Much can be done to really make TJ interdisciplinary, because true interdisciplinary academic work is very much needed. This panel seeks to review where TJ stands today. It seeks to understand the criticisms levelled at TJ, see which of them are valid, and what can be done constructively to overcome them. By examining the problems relating to both the theoretical and practical application of TJ in an interdisciplinary way, this panel seeks to analyse the problems and find ways to overcome those challenges.