Justice under Transitional Administration: Contours and Critique of a Paradigm [Phi]

Article excerpt

  I. INTRODUCTION
 II. JUSTICE UNDER TRANSITIONAL ADMINISTRATION: THE
     CONTOURS OF A PARADIGM
     A. A Unique Rationale
     B. Unique Features
        1. The Multplicity of Actors
        2. Ambiguities in the Law
        3. Unique Challenges
III. JUSTICE UNDER TRANSITIONAL ADMINISTRATION: A
     STOCKTAKING
     A. Evaluation and Critique of Some Approaches
        1. Kosovo--A Learning Experience
        2. East Timor--Some Lessons Learned
        3. Afghanistan Faire et Laissez-faire
        4. Iraq--One Step Forward, Three Steps Back
     B. Some Modest Proposals

I. INTRODUCTION

In a standard textbook on international criminal law, justice is usually theorized in three different categories: domestic legal justice, international criminal justice, as evidenced by the naissance of institutions such as the international criminal tribunals for the former Yugoslavia and Rwanda or the International Criminal Court, and hybrid criminal justice, a term used to describe newly emerging forms of mixed national-international criminal adjudication as practiced in, for example, Sierra Leone or Cambodia. (1)

This tripartite conceptualization of justice is, however, reductionist. Both the practice of the United Nations (U.N.) in international territorial administration (2) and international experiments in state-building, more generally, indicate that there is, in effect, a separate paradigm that has emerged within the practice of post-conflict reconstruction: justice under transitional administration. (3)

This phenomenon is distinct from the broader category of transitional justice (4) that became popular in the wake of the transformations in Latin America and Eastern Europe in the 1980s and deals with the judicial treatment of regime transitions more generally. (5) The concept of justice under transitional administration is more limited in its scope of application. It encompasses scenarios of transitions in which international authorities exercise normative powers in the context of a process of judicial reconstruction, either exclusively or in conjunction with domestic authorities.

This article seeks to focus on two aspects of this paradigm: on its contours and on some of its critiques. (6) The analysis starts with a study of the anatomy of the administration of justice under a transitional administration. This contribution argues that justice under a transitional administration differs in a number of ways from purely domestic or international forms of justice and mixed models of adjudication, namely by its rationale, its features, and its challenges.

This analysis is followed by an assessment of how the challenge of the restoration of justice has been approached in different contexts of transition. The aim of this survey is to highlight the current flaws and deficiencies of contemporary practice and to add some brief suggestions to address some of the existing shortcomings.

II. JUSTICE UNDER TRANSITIONAL ADMINISTRATION: THE CONTOURS OF A PARADIGM

The systematic engagement of international actors in the reconstruction of a domestic justice system in territories under transition, as such, is a relatively contemporary paradigm. The need to develop a targeted strategy to restore the rule of law in post-conflict societies became painfully obvious in the beginning of the 1990s when U.N. peacekeepers failed to accomplish their civilian mandate in Somalia under UNOSOM II, due to both an ambiguous and half-hearted international mandate and a lack of support from local actors. (7) Calls from the U.N. Secretariat for a more sustainable approach to peacemaking (8) led to a shift in conception in the late 1990s that is, inter alia, reflected in the establishment of transitional administrations by the U.N. in Kosovo, (9) East Timor, (10) Afghanistan, (11) and to some extent also in the multilateralization of the U.S. led occupation of Iraq by the Security Council. …