Academic journal article Strategic Forum

Transitional Justice for Syria

Academic journal article Strategic Forum

Transitional Justice for Syria

Article excerpt

Transitional justice is the provision of justice in the transition from one form of government, often perceived as illegitimate, unjust, and tyrannical, or an anarchic society, to one that observes the rule of law and administers justice. It also is about choices: how to allocate scarce prosecutorial, judicial, police, and prison resources. The goal is to make the rule of law ordinary. A 2004 report of the United Nations (UN) Secretary-General on the rule of law and transitional justice in conflict and postconflict societies observed that most examples of transitional justice involved states emerging from civil war or widespread civil unrest such that government became impossible:

   Our experience in the past decade has demonstrated clearly that the
   consolidation of peace in the immediate post-conflict period, as
   well as the maintenance of peace in the long term, cannot be
   achieved unless the population is confident that redress for
   grievances can be obtained through legitimate structures for the
   peaceful settlement of disputes and the fair administration of
   justice. (1)

Syria after President Bashar al-Asad may pose uniquely Syrian challenges and solutions, but it will hardly be alone in having to undergo transition from dictatorship and civil war to something else. The process inevitably involves transitional justice in some form.

Transitional justice can encompass everything from highly formalized--some might say ritualized--administration of justice, establishment of accountability, and social reconstruction to nothing at all. It may involve external assistance or imposed institutions. The modern history of transitional justice includes the exile of Napoleon to St. Helena, the imprisonment of Jefferson Davis, and the post-World War II trials of German and Japanese war criminals as well as the role played today by international, national, and mixed national-international tribunals; truth commissions; general, partial, and conditional amnesties; and other devices in the process of rebuilding a society traumatized by war. South Africa, Sierra Leone, Guatemala, Rwanda, and Cambodia provide examples of the wide variety of efforts undertaken under the general rubric of "transitional justice."

This transitional justice smorgasbord offers an almost infinite choice among postconflict or postdictatorship mechanisms. The point is to tailor the approach to the society in question with the goal of establishing or reestablishing the rule of law. (2) It is "transitional" because the task is to address past wrongs of the most serious kind, not ongoing issues of justice and public order. Efforts to establish institutions that are capable of delivering transitional justice also should become instruments of law enforcement and judicial administration in the future; thus, the transitional effort may help provide a firm foundation for the rule of law. This transformation does not always happen.

The variety of approaches reflects what Montesquieu called the "nature of things": an international system consisting of diverse independent states of varied political and civil cultures with equally diverse mores and perspectives. (3) Experts such as the African Union's Panel of the Wise, who have studied the issue of transitional justice, recognize that tension may exist between the need for political peace through transitional, all-party governments and the desire for accountability for atrocities. (4) Therefore, the experts suggest following where the local people lead because that population has to be comfortable with the balance reached. The subsequent pages examine this tension and ways to relax it in the course of analyzing the nature of transitional justice, ingredients necessary for success, and bases for assessing success.

Issues

Contemporary notions of transitional justice and the need for mechanisms to deliver it emerged from World War II. The Nuremberg and Tokyo war crimes trials and their successors--the International Criminal Court for the Former Yugoslavia, the International Criminal Court for Rwanda, the Sierra Leone Special Court, the Special Tribunal for Cambodia, and, of course, the International Criminal Court--elevated accountability for atrocities to the status of lodestars for much more than a judicial settling of accounts. …

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