Between Reconciliation and the Rule of Law
BYLINE: Erik Doxtader
Transitional justice is a difficult art. But it is an art. In deeply divided societies, there are no sure methods for coming to terms with the past in the interest of moving into the future.
In recent days, a significant number of civil society and human rights organisations have voiced strong opposition to the African Union's decision to "not co-operate" with the International Criminal Court (ICC) effort to arrest Sudan's President Omar al-Bashir.
As it raises the question of how best to define transitional justice, this debate deserves our attention.
Beyond the issue of whether the Zuma administration has an obligation to fulfil its expressed commitment to the ICC and reject the AU's position, the controversy illustrates a troubling tendency: increasingly the pursuit and promotion of transitional justice is understood as a strictly legal operation.
According to many who have applied their minds to the matter, this means that, in the wake of conflict and the abuse of human rights, there must be accountability before there can be enduring peace and meaningful democratisation; only with the rule of law can we bring perpetrators to book, repair the damage and move forward.
There is no doubt that the law is an indispensable element of transitional justice. But it is not the only game in town.
And there is a danger that undue reliance on legal measures may trap us in the idea that criticising the law is tantamount to condoning criminality. Once we have painted ourselves into such a corner, it will be very difficult to escape.
The rule of law is not self-justifying. Indeed, an important lesson of history is that horrific things can happen when the law becomes a force unto itself. Colonialism. Imperialism. Apartheid.
These atrocities were undertaken and justified in the name of law, a point that Nelson Mandela made eloquently in his 1964 statement from the dock. While promising justice, each relied on "legal violence" to sustain power, co-opt politics and evade accountability.
No matter how fashionable it may be, our response to the law's abuse of human rights cannot be limited to the idea that such deviations are best corrected by installing the "real" rule of law.
Every generation trumpets its rule of law as the "true" rule of law. And every generation - so far - has been proven wrong in the aftermath.
Therein lies the genius of South Africa's constitution - its explicit acknowledgment that law is an invention and that the creation of its power is an ongoing project, a process that depends on something which law itself cannot control - reconciliation.
There may be unimpeachable grounds for prosecuting Al-Bashir. But this does little to deny that many of the arguments advocating his prosecution have gone well beyond the particulars of the case to make global claims about the absolute value and unassailable priority of the rule of law in all matters to do with transitional justice.
This slippage is not surprising. It is a clear and full echo of the New York consensus that has emerged in the past few years and has sought to restrict the meaning of transitional justice to just those things that follow from and serve the rule of law.
Everything else is secondary: the search for truth must feed prosecutions; anything that resembles amnesty must be stamped out; reconciliation is merely law's happy ending. …