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The Law and Politics of Contemporary
Transitional Justice
Ruti Teitelt
Introduction .................. .................................. 837
I. Historical Phases of Transitional Justice .................. 839
II. Contemporary Transitional Justice: Milogevit and Hussein
Trials .................................................... 840
A. From Nuremberg to The Hague ........................ 841
B. Transitional Justice in the Iraqi Occupation ............ 843
III. Global Transitional Justice: Comparative Perspectives .....844
A. Transitional Justice and Regime Change ................ 845
B. Contemporary Transitional Justice and the Legalist
Paradigm ............................................. 847
C. Globalizing Justice: Transcending Old Dichotomies .....849
D. From the International to the Global: From Primacy to
Complementarity ..................................... 851
E. Universality's Law .................................... 852
IV. Justice at War and for Peace .............................. 856
A. Can Justice Buy Peace in Iraq? ......................... 859
B. Post-Cold War, Post-Conflict Justice .................... 860
Conclusion ...................................................... 86 1
Introduction
Slobodan Milogevit, Saddam Hussein, Hiss~ne Habr , Augusto
Pinochet, Charles Taylor. There have never been more political leaders in
the dock, or, under the shadow of its threat. Of what significance are these
contemporary instances of transitional justice? This article will use the
trials of Slobodan Milogevit and Saddam Hussein as an occasion for revisiting
and extending my ongoing project of tracing a genealogy of transitional
justice.
In prior work, I have defined "transitional justice" .as that conception
ofjustice associated with periods of political change.1
In an ongoing genealogy,
I tie the legal developments in this area to distinct political phases of
t Ernst C. Stiefel Professor of Comparative Law, New York Law School. Many
thanks to participants in the Cornell International Law Journal's symposium, the
Georgetown Law International Human Rights Colloquium, and to the Yale Law School
Schell Center Human Rights Workshop for comments on an earlier draft. My gratitude
to Bronwyn Leebaw and Jack Snyder for incisive comments. Thanks to Camille
Broussard, Justin Coffee and Theresa Loken for research assistance, and to Stan
Schwartz for word-processing assistance.
1. RuTi TEITEL, TRANSITIONAL JUSTICE 3 (2000).
38 CORNELL IN'L LJ.837 (2005)
Cornell InternationalLaw Journal
world history, a framework proposed for the study of the law and politics
of transitional justice.2
In this genealogy, the legal developments are tied
to my sense of their varying political purposes. I also endeavor to analyze
the extent to which there are trends in the legal changes. Lastly, the discussion
of political context and aims ties the genealogy to human thought
relating to a history of responses to political conflict, yielding an intellectual
genealogy of transitional justice.
Understanding the instant trials here discussed will necessitate an
extension of our thinking regarding transitional justice in an attempt to
explore latter-day transitional justice. What follows are tentative conclusions
about diverse circumstances. The criminal justice processes discussed
here present conflicting consequences for the rule of law, further
discussed infra,which well reflect the dilemmas of transitional justice written
about more extensively in my book TransitionalJustice.3
One set of questions addressed here relates to the goals of transitional
justice and evaluates the shifts in genealogical phases in these terms. Transitional
justice evokes many aspirations: rule of law, legitimacy, liberalization,
nation-building, reconciliation, and conflict resolution. While the
transitions literature appears to presume a goal of "transitions to democracy"
as will be seen infra, the democratization goal is often in tension with
other aspirations identified here, such as the new focus on conflict resolution
and reconciliation.4
This proposed genealogy seeks to help identify
how these goals shift and map their implications so as to clarify the distinctions
between, and the differing implications of, these various aspirations.
The processes discussed here constitute instances of what I have characterized
as a paradigm of global transitional justice: an increasing
juridicization among diverse legal systems, international and national, and
multiple paradigms of legitimacy in global order. Below, these transitional
justice responses are further elaborated along these lines. As will be seen,
the two trial processes discussed here illustrate these alternative
paradigms.
The genealogy proposed here is structured along multiple lines. First,
it is organized largely chronologically and illustrates critical cycles divided
into three phases of transitional justice. Second, the genealogy is organized
largely along a schematic based on the law and politics of the developments
associated with the three phases of transitional justice. Third, the
genealogical phases are also structured along related intellectual trends,
reflecting the connection of the politics of transitional justice in particular,
with a trend toward increased juridicization of international affairs, as well
as the related politicization of the law. This theme is taken up infra in Part
III with a discussion of the aims of contemporary trials.
2. Ruti Teitel, Transitional Justice Genealogy, 16 HARv. HUM. RTs J. 69, 69 (2003).
3. TEITEL, supra note 1.
4. See generally HUMAN RIGHTS IN TRANSITION: GETTYSBURG TO BOSNIA (Carla Hesse
& Robert Post ed., 1999) (discussing reconciliation in Balkans); JAMES L. GIBSON, OVERCOMING
APARTHEID: CAN TRUTH RECONCILE A DIVIDED NATION? (2004) (discussing reconciliation
in South Africa).
Vol. 38
2005 Contemporary TransitionalJustice
1. Historical Phases of Transitional Justice
Modern transitional justice traces back to World War 11, as well as the
post-World War I period. Transitional justice in the postwar phase ("Phase
I") was extraordinary in its internationalism. The Cold War brought an
end to this rush of internationalism, however. The second, post-Cold War
phase of transitional justice ("Phase II") is associated with the post-1989
wave of democratization, modernization, and nation-building. Finally,
toward the end of the twentieth century, global politics was characterized
by conflict resolution and a recourse to justice. The third, steady-state
phase of transitional justice ("Phase Ill") is associated with contemporary
conditions of persistent conflict which lay the basis for the generalization
and normalization of a law of violence.
Phase I of the genealogy-the postwar phase associated with interstate
cooperation, war crimes trials, and sanctions-reflects an energized internationalized
transitional justice and related international aims and purposes.
However, this phase would end soon after World War I as the
exceptional postwar political conditions began to fade. In other words, the
first phase of transitional justice was a product of postwar political conditions
that were sui generis and would not recur in the same manner. 5
With
the Cold War and its balance of power came a related political equilibrium
and an impasse for transitional justice. Nevertheless, the postwar legacy
criminalizing state-sponsored wrongdoing as part of a universal rights
scheme had unprecedented force-a legacy thought today to have formed
the basis of modern human rights law.6
While current phenomena appear
to be sharing certain dimensions with this earlier postwar period, there are
important differences which are addressed below in Part i. 7
Phase II is associated with a wave of accelerated democratization.
Towards the end of the twentieth century, the Soviet Union's collapse and
disintegration helped to lead to concurrent political transitions processes
in diverse regimes. Withdrawal of Soviet-supported guerrilla forces in the
late 1970s accelerated the end of military rule and accompanying transitions
in South America. These transitions were rapidly followed by post-
1989 transitions in Eastern Europe, Africa, and Central America. While
these are often described as isolated developments, many of these conflicts
had been supported by international power politics. Therefore, the end of
the Cold War advanced their resolution and facilitated liberalization in the
regions.
While the post-Cold War wave of transition raised the theoretical possibility
of a return to the Phase I internationalism, as this article elaborates
infra, these developments took their own form, one that moved beyond
internationalism to global transitional justice. The form of transitional justice
that emerged in this phase is associated with not only the rise of
nation-building but also, as is elaborated infra, other more complex and
5. See PETER MERKL, THE ORIGIN OF THE WEST GERMAN REPUBLIC (1963).
6. Louis HENKIN, THE AGE OF RIGHTS 1 (1990).
7. See infra text accompanying notes 8-10.
Cornell InternationalLaw Journal
sometimes competing aims. Accordingly, the Phase II transitional model
tends to rely upon more diverse rule-of-law understandings tied to particular
political communities and local conditions. Instances of local or even
privatized justice often stand in tension with a broader conception ofjustice
associated with transnational politics.
By the twentieth century's end, there emerges what I contend is a
third, "steady-state" phase of transitional justice. Phase III reflects the particularities
of the post-Cold War framing. At this time, transitional justice
is characterized by the fin de siecle acceleration of transitional justice phenomena
associated with globalization, typified by conditions of heightened
political instability, fragmentation, and persistent conflict. At this point,
transitional justice moves from the exception to the norm, constituting a
new paradigm of the rule of law. In the contemporary phase, transitional
jurisprudence reflects the normalization of an expanded juridicized discourse
of humanitarian law associated with pervasive conflict. Moreover,
the available sources of legitimacy comprehend a continuum between the
local and the transnational.
The contemporary episodes in transitional justice discussed here, the
trials of Slobodan Milogevit and Saddam Hussein, illustrate instances of
Phase III transitional justice-seeking of responses associated with postCold
War global politics. As instances of global transitional justice, these
processes are transnational and play to more than one audience and constituency.
Relatedly, these processes are aimed at advancing multiple political
aims in a highly politicized context of persistent conflict circumstances
as discussed below.
II. Contemporary Transitional Justice: Milogevi and Hussein Trials
Let us now consider the forms of transitional justice associated with
the contemporary moment, the ongoing processes that are the subject of
this article. This Part discusses salient features of the Milo~evit and Hussein
trials briefly and then proposes several points about what might characterize
the contemporary phase in global transitional justice: the puzzle of
the association of the marked increase in juridicization and an expansion
of the reach of law in international affairs, while often in conditions of
persistent conflict. These changes in conditions are reflected in the new
developments in international humanitarian law, which now reaches
beyond international conflict to intrastate incidents that occur even in
peacetime, extending in particular to such extreme offenses as crimes
against humanity. Even where internally based, legal responses to these
developments can prevent the prospect of destabilizing policies.8
Nevertheless,
as will be discussed further on, contemporary legal responses do
not necessarily express an unequivocal sense of a progressive rule of law.9
Instead, as will be elaborated infra, one might best understand this by
drawing on prior theories on transitional justice that shed light on law's
8. See infra text accompanying notes 56-68.
9. See infra text accompanying notes 25-45.
Vol. 38
2005 Contemporary TransitionalJustice
relationship to its political context and the contextualized meaning of the
rule of law in these political circumstances. 10
Global transitional justice as elaborated below implies an expanded
legalism, while at the same time reflecting its trends of juridicization and
decentralization in terms ofjurisdictional sites-local and transnationalas
well as new legitimacies based on a paradigm shift from state- to humancentered
discourses in foreign affairs. As discussed infra, a threshold
humanitarian standard emerges. Below, contemporary processes of transitional
justice are identified and discussed, with an eye to analysis and elaboration
of these alternative paradigms.
A. From Nuremberg to The Hague
With the trial of Milo~evit in The Hague, international war crimes trials
returned to Europe for the first time since World War II in the genealogy
of transitional justice. On its face, this development appears to present
a return or cycling back to the postwar trials. Yet this may well be a surface
resemblance. To what extent do contemporary developments represent a
sign of a return to internationalism?
Revisiting the postwar trials from the present perspective sheds light
on the meaning of internationalism in the genealogy of transitional justice.
What becomes evident is that internationalism lacks a fixed meaning and
that it is best understood within a hermeneutic, historical context. For
example, seen from the present perspective, and infused by the inevitable
comparison with the existing international criminal tribunals, Nuremberg,
while reflecting an agreement of the four Allies, was ultimately not all that
international.1 1
Moreover, without a final judgment and confrontation
against Hitler, Nuremberg lacked the ultimate symbol of a top political
leader in the dock. Seen in a historical light, there is some overstatement in
the extent to which the postwar trials lay the basis for contemporary transitional
justice.
Accordingly, in some regard, one might say that it is the contemporary
Hague trial of Slobodan Milogevit that is the landmark case constituting
the first prosecution of a political leader in an international proceeding. At
the International Criminal Tribunal for the former Yugoslavia (ICTY),
Milogevit sits in the dock, charged with war crimes, crimes against humanity
and genocide. These offenses have been made subject to international
jurisdiction, although some were committed domestically, reflecting radical
developments in the construction of international criminal
10. See Teitel, supra note 2, at 74.
11. Compare the Nuremberg Charter with other contemporary charters, such as
those of the ICTY and other creatures of the U.N. bodies, either Security Council, in the
case of ad hoc tribunals, or the General Assembly, in the case of the International Criminal
Court. See Charter of the International Military Tribunal, Aug. 8, 1945, 82 U.N.T.S.
280 [hereinafter the Nuremberg Charter]; Statute of the International Criminal Tribunal
for the former Yugoslavia, May 25, 1993, 32 I.L.M. 1192, available at http://www.un.
org/icty/basic/statut/statute.htm [hereinafter ICTY Statute]; Rome Statute of the International
Criminal Court, July 17, 1998, 2187 U.N.T.S. 90, availableat http://www.un.
org/law/icc/statute/romefra.htm [hereinafter the Rome Statute].
Cornell InternationalLaw Journal
jurisdiction. 12
To fully situate the contemporary ICTY's project with a historical eye
necessitates reflection on its political context of post-conflict justice and,
in particular, recognition of the full military and political context of the
time and its relation to the contemporary processes. Going back to its origins
in the Balkans conflict, transitional justice's asserted goal was to
restore peace. In the midst of the conflict, a U.N. Security Councilappointed
commission of experts investigated atrocities committed in the
region and concluded, inter alia, that there had been willful killing, organized
massacres, torture, and rape. Moreover, the determination was made
to set up a court which assertedly would help restore peace in the midst of
political conflict. 13
Of course, this account raises many questions, for, after all, in the
absence of a clear military victory, what exactly is the role contemplated
for international criminal justice? As shall become evident, in these conflictive
circumstances, transitional justice is denoted by difficult dilemmas.
In such conditions, even more than in ordinary transitional justice, there is
an overly ambitious aim for the role of the law: justice-seeking in the
absence of peace. At Nuremberg, building on the historical "justwar" trials
tradition, victors' justice was meted out over a defeated enemy in its vanquished
country. At The Hague, however, this is simply not the case. The
recourse to an international tribunal remains distant from the Balkan conflict,
and justice was being meted out in the midst of political conflict.
From the start, it was evident that, in the absence of full authority, there
would be some compromise in the potential for the law and a lack of full
legitimacy. For example, the ICTY often lacks custody over the accused as
well as control over the evidence. Even after a decade, those most responsible
for war crimes, such as Radovan Karad~it and General Ratko Mladit,
remain at large.1 4
Contrary to the mid-century postwar processes, in the
contemporary setting, international justice bears a different relationship to
political power. In the contemporary international tribunals, law bears a
distinct relation to the exercise of military force and international
intervention.
Therefore, a genealogical perspective necessitates thinking about these
ICTY proceedings over a political time line. In this regard, one might consider
the ICTY to have recently entered the latter stage of its proceedings.
By 2008, it must wrap up all trials.1 5
Indeed, at this point, one might
12. Milogevit first appeared before the ICTY on July 3, 2001. Prosecutor v.
Milosevic, Case No. IT-02-54, Initial Appearance (July 3, 2001).
13. See Report of the Security Council Mission EstablishedPursuantto Resolution 819,
addressed to the President of the Security Council,U.N. Doc. S/25700 (Apr. 30, 1993).
14. See Press Release, Human Rights Watch, Bosnia: Arrest of Srebrenica Indictee
Hailed, Karadzic, Mladic Still At Large (Apr. 17, 2001), http://hrw.org/english/docs/
2001/04/17/bosherl7l.htm.
15. See Press Release, U.S. Dept. of State, Minikes: US Supports Completion Strategy
for War Crimes Tribunals, Says ICTY Plays Important Role in Moving Balkans Towards
Euro-Atlantic Integration (Nov. 5, 2003), http://usinfo.state.gov/dhr/Archive/2003/
Nov/06-767701.html.
842 Vol. 38
2005 Contemporary TransitionalJustice
distinguish between the strategy used at the ICTY's inception and the "exit
strategy" of the present stage. Earlier, the pivotal issues concerning the
international tribunal at The Hague centered on the parameters for the
bases for the assumption of international jurisdiction. Whereas at the present
stage, it is just the reverse: the relevant questions explicitly concern
the jurisdiction's future devolution and what ought to be the normative
relationship of the international legal regime to that of the relevant states.
As will be seen, these questions about what ought to be the normative relation
of the international to the national turn out to be endemic to Phase 111,
the phase of transitional justice which is associated with an emerging
global rule of law.
B. Transitional Justice in the Iraqi Occupation
While the political and military context associated with the Balkan
conflict spurred the move to international justice, in Iraq, even in similarly
conflictive circumstances, there was a different move. Rather than recurring
to an international forum, the trials in Iraq instead illustrate successor
justice in the context of an ongoing military occupation.16
While the initial
attempts would later be abandoned in light of the security issues of the
ongoing insurgency,' 7
the contemporary Iraqi trials give the appearance of
continuing to be closely associated with a politics of occupation.
From the beginning in postwar Iraq, tragic mistakes were made in
what can now be seen as miscarriages of transitional justice. 18
The instant
efforts at transitional criminal justice were preceded by attempts at deracinated
constitutionalism: atomistic trials, radical purges, and compromised
elections. In particular, there was a rush to debaathification, resulting in
the evisceration of existing institutions, such as the Iraqi parliament and
army.19
These purges needlessly sacrificed potential sources of legitimacy
concerning, for example, ongoing constitutional reform at the time. In
transitions there is often a problem of how to deal with prior regime institutions,
given the mix of individual and collective responsibilities associated
with systemic persecution, and this dilemma poses a challenge to the
parameters of transitional reforms of the police and military. The postinvasion
rush to debaathification involving speedy purges of the military
and the police, arguably sacrificed present security to the claims of justice,
leaving the country with a real military and security vacuum. Yet, subsequently,
this first response was revisited, and a new view emerged regard-
16. Though there was a substantive debate over what ought to be the site of the trial,
see infra text accompanying note 78.
17. See Michael P. Scharf, Can This Man Get a Fair Trial?,WASH. POST, Dec. 19,
2004, at B1.
18. See generally LARRY DIAMOND, SQUANDERED VICTORY: THE AMERICAN OCCUPATION
AND THE BUGLED EFFORT TO BRING DEMOCRACY TO IRAQ (2005).
19. See Peter Slevin & Rajiv Chandrasekaran, Iraq'sBaath Party Is Abolished; Franks
DeclaresEnd of Hussein'sApparatus as Some Members Retake Posts, WASH. POST, May 12,
2003, at A10 (noting that debaathification was a goal of U.S. authorities during the
occupation period).
Cornell InternationalLaw Journal
ing the Iraqi army's capacity for democratic transformation. 20
The failure of sweeping debaathification spurred a turn away from the
bureaucratic responses to the past regime, in part, to the individualized
response characterizing criminal justice. This move to criminal justice
opened up a vigorous debate over what authority ought be exercised over
Saddam Hussein and, in particular, whether it ought to be national or
international. While these questions reflect competing rule of law values,
the waging of this debate at this time clearly reflects Phase III of transitional
justice characterized by globalization.
The association of justice processes with the U.S. occupation raises
issues as to the extent to which these trials can advance the purposes of the
transition. The day of the purported withdrawal from Iraq also launched
the first trial of Saddam Hussein.2 1
At the time, the exhortation to justice
had an air of Thermidor. With the former top leadership in custody,
including Hussein, there was an imminent threat that heads would roll.
Though this plan would be abandoned, given the then ongoing level of
American control, the first trial would have been neither national nor international,
but an "occupation tribunal," with consequences for its legitimacy
and potential for contributing to the rule of law.2 2
In any event, the
selection of judges by what was widely viewed as a wing of the occupation,
as well as the role of the United States in the 1980's, would seem to make
the Iraqi case equally vulnerable to the claim to victor's justice.2 3
Indeed,
given the ongoing occupation status, the establishment of a state trial policy
would seem to be a symbol of Iraqi sovereignty. While such dilemmas
are common to pre-transitional periods, contemporary Iraqi prosecutions
pose an extraordinary and acute lack of security.2 4
Part II's discussion of the political context and mandates of both the
ICTY and the Iraqi Special Tribunal (IST) becomes relevant to the argument
elaborated in Part III regarding the character and form of transitional
justice developments associated with this political moment. There are
clear analogies with these trials that relate to the context of victor's justice
and to the ambitious aims of democratization, peace and reconciliation.
III. Global Transitional Justice: Comparative Perspectives
This Part introduces what is termed here as Phase III "global transitional
justice." Transitional justice in the Balkans and Iraq offers two
instances of what this article characterizes as global transitional justice.
This Part endeavors to situate these two trial processes in a political con-
20. See Bradley Graham & Peter Baker, Deadline for Troop Withdrawal Ruled Out,
WASH. POST, Jan. 30, 2005, at Al.
21. See Peter Landesman, Who v. Saddam?, N.Y. TIMES MAG., July 11, 2004, at 34.
22. See Ken Roth, War in Iraq: Not a HumanitarianIntervention, in HUMAN RIGHTS
WATCH WORLD REPORT 2004, at 13, available at http://hrw.org/wr2k4/download/wr
2k4.pdf.
23. SeeJohn F. Burns, Hussein Tribunal Shaken by Chalabi'sBid to Replace Staff N.Y.
TIMES, July 20, 2005, at A9.
24. Roth, supra note 22.
Vol. 38
2005 Contemporary TransitionalJustice
text in the immediate aftermath of conflict and the pursuit of a related mix
of aims relating to both local and global, to post-conflict justice, to nationbuilding,
and to the establishment of the rule of law. Despite their differences,
consideration of this shared context enables comparative analysis.
Below, the article elaborates and analyzes issues concerning the
diverse aims of contemporary transitional justice. The discussion is
divided into four parts: first, transitional justice and normative regime
change; second, issues posed by globalizing transitional justice; third, transitional
justice for peace; and lastly, transitional justice's relation to the
historical just war aims.
A. Transitional Justice and Regime Change
Genealogical inquiry reflects the course in transitional justice over
time and the particular aims associated with different periods of political
transformation. As suggested earlier, the contemporary period reflects a
chastened commitment to deep political change and the limitation of goals
to post-conflict restoration of peace.25
This mix of purposes, as is elaborated
infra, may well not be necessarily fully reconcilable, which may well
help explain the perception of the ways they seem to pose instances of
imperfect transitional justice.
In this regard, transitional justice at present reflects a distinctive conception
associated with the period of post-Cold War political change.
Because of the political context of the current trials and their aim ofjusticeseeking
amidst conditions of conflict, the onerous burden of creating a
visible normative shift depends upon transitional justice. Where criminal
justice is brought to bear from outside the state, one aim is to jumpstart
political transition processes on the ground.
Both trials discussed in this article aim to draw a line for the future.
Yet, how can some sense of legitimacy be achieved in the transition?
Where would it come from? Vivid construction of transition should be
achieved by drawing a clear line distinguishing the past from the present.
Can these contemporary trials express a clear message in this regard?
In current political conditions, any pursuit of justice goes to the very
possibility of a global rule of law. This article pursues a genealogical structure
of transitional justice and discusses current responses within a postCold
War framework. What sort of rule of law do the current trials
represent? To some extent, the message is incoherent because of the complexity
and the scope of the sought-for normative change in terms of wartime
justice, nation-building and post-conflict justice. Implemented in the
midst of conflict, these trials are aimed at jumpstarting the political transition.
In the absence of a more established matrix of rule of law, however,
25. There are scholars who emphasize the didactic goals of the Milogevi trial. See
Martti Koskenniemi, Between Impunity and Show Trials, 6 MAX PLANCK Y.B. OF U.N. LAw
1 (2002). But recognizing the expressive and didactic purposes raise a separate question
about the substance of the message, i.e. a trial that establishes the truth about facts
in controversy seeks to be after lessons in what? This article contends there have been
ongoing changes in these processes' political purposes.
Cornell InternationalLaw Journal
transitional justice here bears a heavy and complex burden. Indeed, the
difficulties in the current administration of transitional justice reflect some
of the dilemmas of justice-seeking processes in strained political
conditions.
The overall normative aim of drawing a line of legitimacy between
regimes is evident in the apparent interchangeability of transitional justice's
various forms. For example, in Iraq, there was a debate about diverse
modalities, whereby various transitional responses were proposed and
abandoned in short order, reflecting the problem of sequencing in situations
of diminished legitimacy. Which responses should come first? To
what extent ought constitutions precede or follow elections? The persistence
of these debates suggests a surface interchangeability in the modalities,
concentrating on a largely symbolic modicum of transitional justice.
It also suggests that there can be no fixed rule and that the right modality
will depend upon which institutions and processes can best advance legitimacy
in the particular political and juridical conditions at stake.
From the start, the proposed sequence began with trials, followed by
constitution drafting and elections. Following political resistance, this proposal
was abandoned and a change of sequence ensued: elections preceding
trials, and constitutionalism thereafter. 26
As with the constitutional
project, the first impulse was to have early trials of Saddam Hussein and
his henchmen. Postponement of the trials was welcome news because, at
the time, given their lack of expertise in war crimes, the Iraqi judiciary
could not handle such high profile war crimes trials, and the United
Nations would not bail them out.27
Other good reasons existed to slow
down the wheels of justice. Although the trials were postponed, the proposed
timing reflects the purpose to link up the trials to the electoral transition.
Criminal justice was aimed at promoting the political transition, that
is, to underscore the illegitimacy of the prior regime and to advance political
transformation.
Nevertheless, the question remains whether transitional justice can
foster normative regime change in these political and juridical conditions.
The ICTY offers a cautionary tale. By some measures, these international
proceedings appear to have backfired by producing a nationalist backlash.
The Hague tribunal's indictment has hardly affected the political standing
of Milogevit who was lured out of the country under false pretenses. By
contrast, the political leader who openly cooperated with the tribunal, late
Prime Minister Zoran Dindit, paid for it with his life. Recent Serbian elections
turned into something of a referendum on Miloevik. 28
Within this
26. See Ruti Teitel, Operation Iraqi Freedom: Just or Unjust War? Humanitarian
Action, or Simply Geopolitics?, FINDLAw, Apr. 8, 2003, http://writ.news.findlaw.com/
commentary/20030408_teitel.html; Iraq Self-Rule, ONLINE NEwsHOUR, Nov. 13, 2003,
http://www.pbs.org/newshour/bb/middle-east/july-decO3/iraq- l1-13.html.
27. See Warren Hoge, U.S. and U.N. Are Once Again the Odd Couple Over Iraq, N.Y.
TIMES, Nov. 14, 2004, at A15.
28. See Bogdan Ivanisevic, Softly-Softly Approach on War Crimes Doesn't Help Democracy
in Serbia, HUMAN RIGHTS WATCH COMMENTARY, http://hrw.org/english/docs/2004/
06/25/serbia8966.htm (last visited July 30, 2005).
Vol. 38
2005 ContemporaryTransitionalJustice
society, there continues to be extensive denial of the basic facts of the atrocities
committed during the conflict.29
B. Contemporary Transitional Justice and the Legalist Paradigm
This Part discusses the contemporary understanding of legalism by
evaluating the two trial processes discussed in this article as examples of
alternative international and national legal models, and their potential contribution
to the rule of law.
Postwar scholars, such as Judith Shklar, supported the international
criminal tribunal at Nuremberg and the international law upon which it
was predicated for their contribution to legalism. 30
In the postwar context,
in light of the problems of Nazi law, the turn to international law made a
contribution to the perception of the reestablishment of legality in Germany,3
1
although scholars are divided on the extent to which the postwar
trials ultimately contributed to the restoration of the rule of law.32
However, consider at this juncture whether international law is too
facilely equated with legality. To what extent, ultimately, does it advance
the rule of law domestically? In the postwar context, scholars were sober
about the law's potential and characterized legality as a "continuum," a
"matter of degree."33
Therefore, political context is extremely important,
and accordingly, one might expect that it is precisely in the associated
postwar context that international law can make a contribution to the
establishment of the rule of law. Were we to analyze the contemporary
scene from the postwar perspective, therefore, the degree of legalism in the
trials would be of relevance, as well as its potential impact on local politics,
i.e. the relative contributions to the rule of law in these circumstances.
In this regard, the two processes discussed here, the ICTY at The
Hague and the prospective Baghdad court, with their differences, reflect
varying dimensions of legalism's potential as well as its limits. Thus, for
example, in the midst of the Balkan conflict, the turn to an international
tribunal offered important elements of the rule of law.34
The turn to international
law offers continuity in the enforcement of equal protection and
adherence to individual accountability under the law. There are other
more particular values expressed in prosecutions of war crimes and crimes
against humanity charges as discussed infra.
Nevertheless, the Miloevit trial also demonstrates the limits of legalism.
As the trial drags on, the inevitable analogies to the Nuremberg trials
29. See Nicholas Wood, Video of Serbs in SrebrenicaMassacre Leads to Arrests, N.Y.
TIMES, June 3, 2005, at A3.
30. See generallyJUDITH N. SHKLAR, LEGALISM: LAw, MoRALs, AND POLITICAL TRIALS
(1964).
31. Id. at 156. For Hannah Arendt, the international component was important for
its symbolism.
32. See JEFFREY OLICK, IN THE HOUSE OF THE HANGMAN: THE AGONIES OF GERMAN
DEFEAT, 1943-1949 (2005).
33. SHKLAR, supra note 30.
34. For discussion of international law's potential for contribution to rule-of-law values,
see TEITEL, supra note 1, at 20-21.
Cornell InternationalLaw Journal
wear thin.35
While the Nazi.Reich's top rung was convicted in a matter of
months, those proceedings might well be considered to have occurred in
conditions of diminished legalism. By contrast, at The Hague, one might
conclude there to be an apparent surfeit of procedure and regulation.
Turning legalism on its head, Milogevit has taken advantage of the
process by insisting on representing himself, delaying the trial and challenging
the tribunal's jurisdiction and legitimacy.36
The longer his self
"defense" continues,3 7
the more successful Milogevit will be in portraying
himself as less a perpetrator than a "victim" of the international commu,
nity and its legal processes. This strategy appears to have been effective in
undermining the trial's effects in condemning perpetrators of the most heinous
offenses at the top of the state power echelon.
From the start, the proposed trial of Saddam in the specially established
IST reflected a lesser commitment to legalism.38
To the extent that
the IST exhibits procedural irregularities, negative consequences will follow
for the trial's capacity to lay the foundation for the rule of law in postconflict
Iraq. From the process's inception, there has been a host of rule of
law problems concerning such factors as the newly established court,
underlying charter, the appearance of discontinuity and selectivity, and
arbitrariness in the law. Other issues go to due process, transparency and
fair defense. The first public glimpse of Hussein as an unrepresented
defendant, however distorted, laid a basis for victimization. As in the
Milogevit trial, inadequate representation could hardly send a message of
the reestablishment of rule of law in Iraq.3 9
Issues of due process, access
necessary to a fair defense, and transparency persist.40
So far, the trial
process has not been open; rather, it reflects attempts to control the
handover and related processes.
There is also the likely problem of proof. While there is no lack of
documentation, particularly of the worst of the offenses, such as genocide,
difficulties arise in linking the proof up to the actions of senior officials,
thereby establishing the "chain of command." As with Milogevit, it may be
difficult to link the atrocities directly up to Saddam's policies. 4 1
Ultimately,
this may not matter because the burden of proof in the Iraqi tribunal
is not explicitly necessarily the usual high standard, as nothing in the
35. At the time of this writing, the proceedings are into their fourth year.
36. lan Traynor, Milosevic Trial FaltersAfter Judge Retires, THE GUARDIAN (London),
Feb. 24, 2004, at 17.
37. His defense also relied on frequent claims to illness, also building the victim
role. See id.
38. See Statute of the Iraqi Special Tribunal, Dec. 10, 2003, 43 I.L.M. 231, available
at http://iraq-ist.org/en/about/statute.htm [hereinafter The IST Statute].
39. William Langewiesche, Ziad for the Defense, 295 THE ATLANTIC MONTHLY 65
(2005), availableat http://www.theatlantic.com/doc/prem/200506/langewiesche.
40. See Anthony Dworkin, Saddam Hussein and Iraq's War Crimes Tribunal, CRIMES
OF WAR PROJECT, Dec. 21, 2003, http://www.crimesofwar.org/onnews/news-saddaml.
html.
41. See Human Rights Watch, Iraq: State of the Evidence, 16 HUMAN RIGHTS WATCH
REPORT No. 7(E), 5 (2004), available at http://hrw.org/reports/2004/iraql104/iraq
1104.pdf.
848 Vol. 38
2005 Contemporary TransitionalJustice
statute or rules demands a burden of proof "beyond a reasonable doubt"
ordinarily associated with the application of the rule of law in modern
criminal justice.42 Yet, applying a lower standard will once again backfire
as to the uses of the trial to establish legitimacy and the rule of law in Iraq.
Finally, there is a related problem due to the passage of time and its relation
to establishing the proof of the atrocities. Many of the Hussein trial's
central charges relate to offenses perpetrated against civilian opposition
going back for years.43 These may well prove difficult to document as they
go back two decades.44
Yet; to whatever extent there are departures from due process, such a
trial strategy is not likely to advance the rule of law or show change toward
liberalization. The dilemmas raised here over the form ofjustice have been
recurrent in transitions, frequently resulting in what I have termed the
"limiting of the criminal sanction" as such dilemmas effectively limit the
use of criminal justice in periods of transition.45 These persistent dilemmas
occasioned by criminal justice in transitional circumstances reflect
issues about whether this form of justice can help advance the current
regime's legitimacy.
C. Globalizing Justice: Transcending Old Dichotomies
During the last century, the central point of reference in the conceptualization
of the shape and role of international rule of law was constituted
by the international-national dichotomy. At present, an evident remapping
of public international law is afoot. A new paradigm has emerged
whose dimensions refer to expanded legalism, while at the same time also
predicated upon fragmentation, proliferation and multiplicity of jurisdictional
sites-national, international, and transnational- and attendant new
legitimacies.
In the present post-Cold War context, there is an evident transformation
in the significance of the expanded international criminal justice.
Clearly, international criminal justice's aims and contributions are mixed,
as justice-seeking in such new political circumstances inevitably implies
diverse understandings of rule-of-law values. To begin, consider the extent
to which international law at The Hague affords the rule-of-law values of
fairness and neutrality, which one might juxtapose to other rule-of-law
dimensions privileging local accountability. This breakdown in respect for
rule-of-law values has historical resonance. For example, over much of its
history, the United States has long emphasized popular sovereignty, local
accountability, and, therefore, national over international law and its
processes. Relatedly, at present, the United States (and most Iraqis) favors
a nation-building model, where transitional justice is intended to serve
42. See The IST Statute, supra note 38.
43. The IST Statute states that wherever there are gaps, there ought to be reversion to
existing Iraqi criminal law, but there is nothing in the statute regarding what standard to
apply for the burden of proof. See id. art. 16.
44. See Human Rights Watch, supra note 41.
45. TEITEL, supra note 1, at 28.
849
Cornell InternationalLaw Journal
local accountability and related purposes. By contrast, Europeans and the
human rights community have tended to prefer multilateralism and to
advocate U.N.-affiliated trials, such as those convened at The Hague to
adjudicate atrocities in the Balkans and Rwanda, largely on the basis of
privileging other rule-of-law values such as neutrality. Multiple rule-of-law
rules serve the varying aims of transitional societies in global politics,
while transitional conditions often exacerbate tension in adherence to
these diverse rule-of-law values.
To some extent, the contemporary Milogevi and Hussein proceedings
reflect the varying dimensions of legality discussed above. One might even
regard these two contemporary processes as mirror images of the international-national
law dichotomy. Nevertheless, this article suggests that, to
some degree, the dichotomy is overstated because what is frequently at
stake in transition is a core rule-of-law dilemma which cuts across both the
local and the international legal systems, though in each instance affecting
different rule-of-law values.46
From its inception, transitional justice in Iraq raised profound dilemmas:
to what extent could the trial of Saddam offer the sought-for restoration
of the rule of law? What body, if any, had the legitimacy to sit in
judgment? Should this be a domestic prosecution convened in Iraq; an
international adjudication presided over by a foreign judiciary as in the
cases of Nuremberg, the ICTY, and Rwanda; or, alternatively, a "mixed" or
"hybrid" tribunal, like those convened in Sierra Leone and East Timor?4 7
The choices were hardly clear cut, with each jurisdictional scenario
tied to a nexus which arguably fulfills different rule-of-law values. The
international approach would afford a modicum of legal continuity
through the International Criminal Court (ICC) and its charter, reflecting
an apparent international penal code. This alternative legal system appeals
to values of fairness and neutrality, while the mechanisms of national justice
afford local accountability.48
Accordingly, each jurisdiction advances
important but often competing rule-of-law values. Whatever the ultimate
form of the Baghdad tribunal, it will be distinguishable from the posture of
the Hague tribunal, or, the historical postwar context of the Allies' "total"
sovereignty.
Moreover, in present global politics, to what extent can one consider
the international and national legal conceptions as neatly divisible? While
the structure of these transitional justice debates commonly presumes an
ongoing formalism and related dualism in the law, seen from a genealogi-
46. Id. at 11-12.
47. For instances of hybrid trials and discussion of their advantages in advancing
transitional rule of law, see Statute of the Special Court for Sierra Leone, available at
http://www.sc-sl.org/scsl-statute.html (last visited July 30, 2005); Jack Snyder & Leslie
Vinjamuri, Trials and Errors:Principleand Pragmatismin Strategiesof InternationalJustice,
28 INT'L SEC. 5, 20-30 (2003).
48. For discussion of the potential of diverse judicial legal systems for their connection
to the advancement of the establishment of the rule of law, see Paul Kahn, Independence
and Responsibility in the Judicial Role, in TRANSITION TO DEMOCRACY IN LATIN
AMERICA: THE ROLE OF THE JUDICIARY 73-87 (Irwin P. Stotzky ed., 1993).
Vol. 38
2005 Contemporary TransitionalJustice
cal analysis, this view appears to be anachronistic. At this juncture, there
are experiments in the realignment of the national-international balance
and in new hybridizations associated with global rule of law. These developments
in international criminal law and its reception pose a challenge
which penetrates domestic legal systems and their institutions.
D. From the International to the Global: From Primacy to
Complementarity
The contemporary phase of transitional justice characterized here as
"global" is linked up to a changing relationship of the state to the international,
in both its political and legal dimensions. New guiding principles
apt for global politics, this article contends and as is elaborated below, are
now overtaking the prevailing understanding of the relation of international
to national justice whereby it plays a sustained threshold role.
For some time, there has been a clear assumption about the superior
relation of international to national law. While there are differences
among states regarding the internal status and weight of international
law,49
one might say that a hierarchic top-down understanding ofjurisdiction
well defines the twentieth century view of the state within the international
legal system. Yet, at Nuremberg, this assumption regarding the
juridical relationship was not explicitly spelled out because the exceptional
political circumstances at the time did not present the usual status and
relation of the state in international realm but, rather, involved a conceded
absence of national sovereignty. Although the Nuremberg tribunal did
contemplate follow-up trials,50
they would not occur in Germany until the
state had recovered its political and juridical sovereignty. While this was
the understanding at Nuremberg, the question of the international tribunal's
jurisdiction-especially over violations committed against the state's
own citizens-was jurisdictionally the most controversial element that went
to the heart of the postwar trials, particularly in the understanding of its
legacy over time. For prudential reasons, the tribunal would end up limiting
itself to those crimes against citizens associated with the waging of war,
linking crimes against humanity up to more traditional, long-established
war crimes.5
' This judicial self-limiting highlights the perceived vulnerabilities
in the court's arrogation of authority over the state in the international
realm. And, it would also illustrate the struggle to reconcile the
universal aspirations of the law with the more particularist politics on the
ground.
49. On monist and dualist systems, seeJ. H. H. Weiler, The Transformationof Europe,
100 YALE L.J. 2403, 2413-15 (1991); see alsoCurtis A. Bradley, Breard, OurDualistConstitution,
and the InternationalistConception, 51 STAN. L. REv. 529, 530-31 (1999).
50. For a bibliography of war crimes trials, see WAR CRIMES, WAR CRIMINALS, AND
WAR CRIMES TRIALS: AN ANNOTATED BIBLIOGRAPHY AND SOURCE BOOK (Norman E. Tuterow
ed., 1986).
51. See TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS: A PERSONAL MEMOIR
583 (1992).
Cornell InternationalLaw Journal
For about a half century, the postwar trials discussed above would
remain solitary precedents in international criminal adjudication. Indeed,
the ad hoc tribunals of the last decade concerning the Balkans and Rwanda
articulate the unspoken assumptions at Nuremberg about the international-national
legal relations. These tribunals' charters spell out that the
relation of international and national law is clearly one of "primacy" in a
hierarchical structure.5 2
Contemporary global legalism, however, redefines the status and relation
of the international to the national legal regimes in two major ways.
First, in the contemporary moment, international criminal law is more pervasive,
extending beyond the international realm and state borders as well
as circumstances of conflict. Second, while international law is more pervasive
and has greater reach than before, it is also increasingly defined by
its ongoing interstitiality. By interstitiality it is meant here that in the contemporary
relation of the international to the national, international criminal
law operates not as an exceptional matter associated with
extraordinary postwar sovereignty, but instead in a regular permanent way.
These radically transformed circumstances for international criminal justice,
both in scope and reach, beg the question ofwhat is to be the relation
of international to domestic law in the area of criminal justice. The transformed
international system demands a guiding principle apt to address
the ongoing relationship of the multiple legal regimes.
Such a principle exists, and this article articulates what at present may
well be implied in the legal changes in the jurisdiction of the ICC, the first
permanent international criminal judicial body. For the ICC is predicated
upon an alternative jurisdictional principle to primacy, stated under the
reconciling principle of "complementarity."5 3 In the words of the Rome
Statute, the ICC's jurisdiction is triggered if, and only if, the national legal
system is "either unwilling or unable" to exercise jurisdiction. These conditions
will need to be interpreted, but as prefatory to the ICC's substantive
adjudicatory work, this evaluatory enterprise is already a substantial element
of the work of the tribunal.5 4 Indeed, according to the "complementarity"
principle, when countries lack working legal systems for even
minimal criminal justice, these international law institutions and processes
will lay a floor. Ultimately, this jurisdictional principle goes beyond the
procedural to the substantive to construct a global legal minimum which,
insofar as it relates to the most heinous crimes, largely takes the form of a
radical expansion of international humanitarian law.5 5
E. Universality's Law
Beyond the idea ofglobal complementarity discussed above, other normative
understandings have emerged in Phase III of transitional justice.
While the above subpart elaborates how the traditional antinomies of the
52. See, e.g., ICTY Statute, supra note 11, art. 9.
53. Rome Statute, supra note 11, art. I.
54. See id. pt. 2 ("Jurisdiction, Admissibility and Applicable Law").
55. Id. art. I.
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2005 ContemporaryTransitionalJustice
relationship of international to national law are transcended in and by the
idea of complementarity, there are other mediating constructs in contemporary
transitional justice, such as the concept of the law of humanity.
The ascendance of this area of human rights law reflects the changes in
law's potential in present global politics. 56
These normative understandings are raised in the instant processes of
Milogevit and Hussein in the relevant charges. In substance, the law of
humanity implicates the most serious offenses which transcend national
borders and have come to be known as having "universal" jurisdiction.
The concept of universality, as we will see, offers a basis for reconciling
aspects of the local and the international in the contemporary global legal
system.
For some time, crimes against humanity have captured the imagination
in writing on transitional justice. Let us consider why. Judith Shklar
conceived of the postwar trials' legitimacy as depending on the charge of
crimes against humanity: "[Als far as the trial concerned itself with crimes
against humanity it was both necessary and wise."'57 In the epilogue to her
book Eichmann in Jerusalem, Hannah Arendt contends that the "offense
against humanity" formed the basis of the postwar trials.58 It was the mass
murder of the German Jews that laid the foundations of the charge of
crimes against "humanity." While these scholars wrote of trials involving
both international and national processes, respectively, no matter: crimes
against humanity are the offense par excellence that defined the postwar
trials as transcending an exercise in political justice but as a statement
regarding the protection of humanity.
Consider how crimes against humanity express the core rule-of-law
norm that there is no escaping humanitarian law's protective force. The
core legality values of equality and general applicability of the law are
expressed in two dimensions of the crime against humanity. First, the
offense defines and condemns the persecution of "any" citizen group and
therefore, is equally applicable to any citizen regardless of nationality,
ethnicity or religion.59 Second, insofar as these charges may involve abuse
of power by political leaders, no one, even acting leaders, is immune from
judgment. As such, the offense of the crime against humanity goes to the
very basis of a core rule-of-law regime.
This rule-of-law message is also seen in the extent to which current
human rights law emphasizes crimes against humanity's universality.
Prosecution of crimes against humanity appears to instantiate a universal
norm because, by definition, such crimes offend the entire community of
56. Ruti Teitel, Humanity's Law: Rule of Law for the New GlobalPolitics, 35 CORNELL
INT'L LJ.355, 370-73 (2002).
57. SHKLAR, supra note 30, at 155.
58. HANNAH ARENDT, EICHMANN IN JERUSALEM: A REPORT ON THE BANALITY OF EVIL 258
(1994).
59. For the first positive definition of crimes against humanity, see Nuremberg Charter,
supranote 11, art. 6(c); ICTY Statute, supranote 11, art. 5; Rome Statute, supra note
11, art. 7.
Cornell InternationalLaw Journal
"humanity" and therefore subject to universal jurisdiction. Moreover,
because such offenses may be committed anywhere under any circumstances,
whether during war or in peacetime, they may be subject to transnational
adjudications and prosecution by any state as a matter of
universal concern.60
Despite this idealistic view, however, there are always
political constraints.
One might consider, both at The Hague and in Baghdad, the extent to
which crimes against humanity lay the basis for the trials' ultimate claim to
legitimacy. Consider the aims of the contemporary adjudications under
the law of humanity and the application of universal jurisdiction in global
transitional justice. One of contemporary transitional justice's goals is
nation-building, and trials are commonly thought to assist in defining a
community in the state consolidation process. However, where the crime
adjudicated is defined as one against humanity, what is the relevant community?
To what extent do such trials assist in nation-building? Some of
these questions arose before, in the postwar successor trials.6 1
Moreover,
as prosecutions of leaders for acts committed against their own citizens,
both trials discussed here challenge the traditional understandings of territoriality
and sovereignty. Therefore, what aims do such trials accomplish?
The association of these trials with present politics alludes to their potential
role in spurring political regime change in current global
circumstances.
Despite their broad reach, there are ways that the charges of crimes
against humanity may miss a critical point of the trials. Consider to what
extent these offenses can capture the masterminds of repressive policies.
After all, the instant proceedings differ from other historic successor trials.
Milogevit and Hussein are no Eichmann. As their countries' top political
leaders, they are no cogs in the wheel, and their offenses form part and
parcel of the promulgation of the ideological policies involving aggressive
nationalism and ethnic persecution.
Moreover, insofar as the contemporary charges go beyond crimes
against humanity to include war crimes, the trials risk politicization. Particularly,
in the Milo~evit trial, prosecuting war crimes raises broader questions
concerning the legality of the NATO intervention at the time of the
indictment. Moreover, other issues raised by the reliance on the "joint
enterprise" theory may well make it harder to hold Milo~evit individually
responsible for genocide and crimes against humanity.6 2
Given the mix of aims served by transitional justice in this context,
one might question whether and to what extent conducting crimes against
60. See David Luban, A Theory of Crimes Against Humanity, 29 YALE J. INT'L L. 85,
124-131 (2004) (contending for the nexus between the offense against humanity and
universal jurisdiction); see also Stefaan Smis & Kim Van der Borght, Belgium: Act Concerning
the Punishment of Grave Breaches of InternationalHumanitarianLaw, 38 INT'L
LEG. MAT. 918 (1999).
61. See ARENDT, supra note 58, at 269 (arguing for an international tribunal to adjudicate
crimes against humanity).
62. See Rome Statute, supra note 11.
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2005 ContemporaryTransitionalJustice
humanity prosecutions in international fora can assist the advancement of
nation-building.63
In some ways, this raises the flip side of the national
successor trials convened over recent decades. When they are conducted
in pursuit of the aim of political transition, prosecution of crimes against
humanity expresses a core equality under the law norm and, therefore, can
advance an important element of reestablishing the sense of a threshold
rule of law.
While there was an assumption of the nexus of trials to democratization
and nation-building that was central to the project of postwar trials at
mid-twentieth century, at present, signs indicate that contemporary international
trials could well be generating a nationalist backlash which postwar
scholars would have found unimaginable. 64
As it also raises issues for
the so-called "completion strategy," the backlash is likely deleterious for
the trials' ultimate impact. When the tribunal closes its doors, where
should its unfinished, remaining cases go? When Chief Prosecutor Del
Ponte calls for "new partnerships for justice," what realistically are the
choices? In this latter stage, can the ICTY's indictments be turned over to
the national courts? Will the region's domestic judiciaries step up to the
plate and extricate themselves from the surrounding fractious politics?
So far, the picture is not promising. The very few trials held in the
region reflect pervasive ethnic bias. In all of Republica Srpska, to date,
there has only been one war crimes prosecution involving a Bosnian
Serb.6 5
The local judiciary seems so far to be unable to run fair trials without
assistance. Were international assistance to be given, it could proceed
along the distinct relation of the international to the national that characterizes
Phase III of global transitional justice. Along the lines of the "complementarity"
continuum, ultimately international law may well have a
lesser role than a full tribunal but would nevertheless contribute a measure
of legality by integrating the international into the local, either institutionally
or, alternatively, through adding select personnel or embedding itself
in local law. Yet, the legitimacy of this sort of legal nexus would depend on
the recognition by the locals of the potential of such institutions and
processes to advance the rule of law.
For the IST to advance its transitional aims, the attempt as much as
possible is to focus on the substantive bases ofjurisdiction so as to circumscribe
potential countervailing challenges to the occupation. The more
limited the scope of its jurisdiction, the greater the likelihood of success. 66
It is clear, therefore, that there will be rule-of-law trade-offs. Broader war
crimes charges, such as those involving Iraq's invasion of Kuwait, are likely
63. For critique of the view that punishment in the ICTR will advance transitional
aims, see generally Jose Alvarez, Crimes of States/Crimesof Hate: Lessons from Rwanda,
24 YALE J. INT'L LAw 365 (1999).
64. SHKLAR, supra note 30, at 169.
65. Human Rights Watch, Justice at Risk: War Crimes Trials in Croatia, Bosnia and
Herzegovina, and Serbia and Montenegro, 16 HUMAN RIGHTS WATCH REPORT No. 7(D), 9
(2004), availableat http://hrw.org/reports/2004/ictyl004/ictyl004.pdf.
66. John F. Burns, FirstCourt Case of HusseinStems from '82 Deaths, N.Y. TIMES, June
6, 2005, at Al.
Cornell InternationalLaw Journal
to take away from the IST's jurisdiction over charges against Hussein and,
worse yet, for present political purposes, potentially implicate the American
alliance with Hussein in the 1980's. Moreover, for many Iraqis, this basis
of substantive jurisdiction would not likely offer much of a source of legitimacy
in the transition.
Contemporary political leaders' trials may well offer lessons on a number
of issues, ranging from the problem of proof to the way the substance
of the charges risk the trial's politicization. Accordingly, the focus of the
Iraqi trials' subject matter jurisdiction needs to be upon crimes against
humanity, that is, on what Hussein did to his own citizens, because this
goes to the heart of the illegitimacy of the prior regime and, therefore, at
least in part to the legitimacy of the occupation and the establishment of a
successor regime. Even limiting jurisdiction to the relatively undisputed
crimes against humanity charges, especially those concerning the Kurdish
minority, while it would serve the purpose of inclusion at this delicate
moment in the country's political transition, is likely to raise broader
issues in the region.6 7
In his defense, perhaps absorbing the lessons of the
Milogevie trial, Saddam may well challenge the United States with "tu
quoque" defenses on the basis of its recent invasion as well as its broader
historic role in the region.68
This could well risk the trial's potential contribution
to establishing the legitimacy of the successor regime. It is clear
that the many trade-offs raised by the convening of the trial of Saddam
Hussein at this stage of the transition pose profound challenges to the
trial's potential for contributing to the country's liberalization and establishing
the rule of law.
Consider other aims of prosecuting crimes against humanity and
related human rights violations in present global political circumstances.
Beyond their role in the transition, they serve as a basis not only to do
justice with respect to crimes committed in relation to the war, but also, as
a form of post-conflict justice, to justify the initiation of war and the basis
for military intervention. This conflictive and potentially contradictory
dimension of present transitional punishment processes is taken up in the
next part.
IV. Justice at War and for Peace
The trial processes discussed here share a close association with and
relation to conditions of conflict that raise distinct aims and purposes inextricably
intermingled with relevant political circumstances. In this regard,
these trials' transitional goals transcend their individual parameters and
67. See HUMAN RIGHTS WATCH, WHATEVER HAPPENED TO THE IRAQI KuRDs? (1991),
http://www.hrw.org/reports/1991/IRAQ913.htm.
68. Tu quoque, or the "dirty hands" strategy, has been used regularly by the defense
in post-conflict trials to characterize the trials as politically motivated. Among others,
Jacque Verges used this strategy against France in the trial of Nazi Chief in Lyons Klaus
Barbie. See Richard Bernstein, Spirits Haunting a Belated Courtroom Reckoning, N.Y.
TIMES, May 18, 1987, at A4; and Guyora Binder, RepresentingNazism: Advocacy andIdentity
at the Trial of Klaus Barbie, 98 YALE L.J. 1321, 1357-58 (1989).
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2005 Contemporary TransitionalJustice
differences. Both trials involve globalized conditions of conflict and distinct
circumstances of justice that also shape the trials' purposes. Both
trials operate not solely or even primarily for retribution but, rather, to
effect change to end conflict and to bring about reconciliation. Yet, to what
extent can war crimes trials help bring about peace and reconciliation? In
circumstances of ongoing conflict, can the pursuit and even imposition of
justice advance the aims of deterrence, peace and reconciliation?69
Pursuit of a genealogical approach here necessitates inquiry into the
form of justice associated with present political conditions, which illustrates
the normalization of Phase III transitional justice. Both the Milogevit
and Hussein trials exemplify instances of trials in the midst of ongoing
conflict and assertedly convened to advance conciliatory purposes. In this
regard, both The Hague and Baghdad reflect an extraordinary and difficult
context of exercises of law, in the midst of conflict, for justice and peace. 70
Perhaps, not surprisingly, the trials' aims are often contradictory and
involve difficult trade-offs, which makes the message of these trials often
ambivalent.
While modeled after Nuremberg, the Hague tribunal was established
in distinctive political circumstances. While the post-World War II trials
were seen by many as a form of victors' justice, the ICTY, convened in the
midst of a bloody conflict, lacked an analogous authority. Its mandate was
not merely to shape the meaning of a prevailing peace but, instead, to hold
individuals to account for their acts in an effort to establish and promote
peacemaking and reconciliation.
Consider the potential nexus between international criminal justice
and peace. The question became to what extent could justice delivered in a
courtroom in The Hague, isolated from the conflict on the ground, nevertheless
contribute to peace in the region? While the ICTY's central mission
was to transform the conflict in the Balkans to one of individual crimes
answerable to the rule of law so as to achieve peace and reconciliation in
the region, its efforts to accomplish this mission underscored the rule of
law's dependence on a supportive matrix that is generally dependent on
the vitality of both the international and the national legal systems.
The ICTY's double mission may well be compounding its difficulties
as well as obscuring the public perception of its success. Since the tribunal
69. More and more, transitional criminal justice is said to be not in tension with
reconciliation aims but, instead, itself a means toward reconciliation. See KADER ASMAL,
LOUISE ASMAL & RONALD SURESH ROBERTS, RECONCILIATION THROUGH TRUTH: A RECKONING
OF APARTHEID'S CRIMINAL GOVERNANCE (1996). For critical analysis, see Ruti Teitel, Bringing
the MessiahThrough the Law, in HUMAN RIGHTS IN POLITICAL TRANSITIONS: GETTYSBURG
TO BOSNIA, supranote 4, at 177; Fionnuala Ni Aolain & Colm Campbell, The Paradoxof
Transitionin Conflicted Democracies, 27 HUM. RTs. Q. 172 (2005).
70. The ICTY was established during the Balkans conflict but was geographically
detached from the site of conflict, while Nuremberg, a post-conflict creation, was established
in the state of the site of conflict. Finally, the IST began functioning in a situation
of great insecurity, created on site in the midst of continuing insurgency. See David
Scheffer, Saddam Trial is a CriticalTestfor Iraq'sFuture,FINANCIAL TIMES, Aug. 12, 2005,
at 17.
Cornell InternationalLaw Journal
was created not merely to dispense justice but also to achieve reconciliation
in the region, these twin aims have become the measure of the effectiveness
of the tribunal. Yet, how is the accomplishment of international criminal
justice to advance regional peace? While victor's justice sums up a cognizable
relationship of law to power formed over centuries of human experience,
the transitional institutions in The Hague and Iraq lack the legitimacy
generally associated with a humanitarian intervention.
From its beginning, the ICTY was vulnerable, owing to the many differences
between The Hague and Nuremberg. Unlike Nuremberg, The
Hague was convened not after but during the conflict, with distinct consequences.
Created as a peacekeeping measure by the international community
during the conflict, the ICTY lacks the clear authority of victor's
justice. As such, the tribunal has lacked full control over the judicial process,
whether over the relevant evidence or over the accused, frequently
turning to the international community for assistance.
Moreover, since it was established during the conflict, in important
ways, the ICTY's aims have been more ambitious than those at Nuremberg.
As in the postwar trials, justice was aimed at restoring the rule of law in the
region. Yet, having been launched under the Security Council's "Chapter
7" peacemaking powers, however, the international criminal tribunal's purpose
was nothing less than to "bring on peace."'7 1
If, by this, the aim was
deterrence of future violence, the tribunal's success seems tenuous in light
of the ongoing massacres.
7 2
The Hague tribunal's other purposes transcend the mere cessation of
hostilities and involves the aim of societal reconciliation. From its inception,
the ICTY pursued an ethno-conscious prosecutorial policy assertedly
to foster reconciliation in the region. 73
It was hoped that condemnation of
ethnic persecution, together with individual accountability, would transcend
identity politics and advance a shift towards a more liberal order.
Despite this lofty goal, however, the project of reconciliation remains
largely aspirational. Given that the ICTY was established by the Security
Council as a "peacemaking" measure,7 4
the coincidence of the Milo~evit
indictment with the NATO bombing posed a countervailing symbol of collective
attack. When the tribunal declared its intention to indict Bosnian
Serb leaders Radovan Karad~ik and General Ratko Mladit, these indictments
appeared to endanger the delicate balance of peace in the region.
Regrettably, there continues to be massive resistance in the region,
even to the mere recognition of past wrongdoings. More than a decade
since the 1995 massacre at Srebrenica, the fact of past atrocities has yet to
be incorporated in the nation's history. Debate continues to rage over
71. See U.N. Charter ch. VII; S.C. Res. 808, U.N. Doc. S/RES/808 (Feb. 22, 1993).
72. An example is the Srebrenica massacre occurring at this time. For discussion,
see Teitel, supra note 69.
73. See Richard Goldstone, Assessing the Work of the United Nations War Crimes Tribunal,
33 STAN. J. INT'L L. 1, 7 (1997) (stressing the importance of prosecuting war
criminals).
74. U.N. Charter ch. VII.
Vol. 38858
2005 Contemporary TransitionalJustice
responsibility for war crimes, and many cling to their own sense of suffering
and historical exceptionalism. Prime Minister Kogtunica's ill-fate.'
attempt in 2001 to set up a truth commission, doomed from the start by
allegations of bias, was disbanded a year later without producing a
report.75
The ICTY has exacerbated divisions over the region's relationship
to the West, the European Union, and the international community.
Lastly, in what this article characterizes as the ICTY's second stage,
the challenge is shifting from the international assumption of jurisdiction
associated with an apparent nationalist backlash discussed supra to its relegation
and to the devolution of power back to national courts.76
Moreover,
in this latter stage, insofar as there is a perception of either failure or
diminished expectations of the ICTY, it has given way to the new international
institutions such as the ICC and, thus, a shift to the new generation
of tribunals that endeavor to mediate the old national-international dichotomies
through the creation of hybrid legal institutions, processes, and
jurisdictional principles.
7 7
A. Can Justice Buy Peace in Iraq?
Turning to Iraq, consider the asserted aims of the trials of Hussein and
his henchmen. In the midst of extraordinary insecurity associated with the
ongoing conflict raging with the insurgency, to what extent can justice buy
peace?78
Here, some might argue that there is a precedent in the ICTY,
convened during the conflict in the Balkans precisely for the purposes of
reconciliation and peacemaking. Still, despite the precedent, it remains a
tall order for a court to make peace, particularly when, unlike the The
Hague, the court is established on the site of ongoing conflict. Indeed,
ordinarily the pursuit of justice is thought to be plausibly in tension with
peacemaking often understood to involve compromise and closure.
There is a vivid tension in transitional justice's goals in this post-conflict
context. For the trial's association with the occupation hints at the
goals of not only legitimating the military intervention in Iraq but also
supporting the story of regime change. This mix of purposes means considerable
tension over transitional justice from the start and, therefore,
raises acute dilemmas over the question of the appropriate judiciary and
processes. Indeed, the first postponement of the trials arguably reflected a
shift in goals and a move away from justification of the intervention toward
transitional work, such as the delegitimation of the prior regime and legitimation
of the present successor regime. If the goal is to restore legitimacy
75. See Laura Secor, BelgradeSpring, BOSTON GLOBE, June 22, 2003, at D1.
76. Regarding the backlash, see Snyder & Vinjamuri, supra note 47, at 21. On the
backlash in Croatia, see Victor Peskin & Mieczylslaw Boduszynski, InternationalJustice
and Domestic Politics:Post-TudjmanCroatiaand the InternationalCriminal Tribunalforthe
Former Yugoslavia, 55 EUR.-ASIA STUD. 1117 (2003).
77. See Project on International Courts and Tribunals, Hybrid Courts, http://www.
pict-pcti.org/courts/hybrid.html (last visited Oct. 11, 2005).
78. See Robert F. Worth, The Conflict in Iraq: Insurgency, 23 Are Killed in a Series of
Attacks Across Iraq, N.Y. TIMES, Mar. 26, 2005, at A5 (reporting continuing attacks and
casualties in Iraq).
Cornell InternationalLaw Journal
for Iraq, then postponing trials until there is an apt local judiciary in more
secure conditions is better than risking a wrong message about the rule of
law in this postwar context.
B. Post-Cold War, Post-Conflict Justice
In its historical postwar context, the main purpose at Nuremberg may
well have been the justification of the Allied intervention. 79
Considering
the latest developments, however, the contemporary trials raise the question
of to what extent there is an assumed linkage between contemporary
transitional justice and the legitimacy of war and its initiation currently
characterized as "humanitarian intervention."8 0
Perhaps, not surprisingly, with the lifting of the Cold War political
impasse, there has been a conspicuous return to various forms of transitional
justice, particularly its international variants. Relatedly, moreover,
there is a heightened potential for military intervention. At present, forms
of transitional justice are being used as bases for the justifications for
humanitarian intervention.
Accordingly, the trials of Milogevit and Saddam are not merely aimed
at restoring peace in their respective regions. There is a vivid, more complex
role to these trials that goes to the broader problem of legitimacy and
law's relationship to the use of force. Insofar as the trials characterize the
implicated offenses as violations of international humanitarian law, to
some degree they will be laying the bases for "humanitarian intervention."
While these bases clearly existed in Kosovo and Bosnia, the lack of authority
pursuant to convened international proceedings regarding Kosovo nevertheless
muddied the waters early on insofar as recognizing bases for
international legality. Thus, the ambivalent status of the Hague trials
derives from multiple angles: its initial wartime context, its distance from
the implicated region, as well as its initiation of the ongoing paradigm shift
in international justice. While the shift in the uses of humanitarian law
outside of traditional war crimes trials may well aim at advancing political
change, so far, there remains an evident lack of political support for the
dimension of humanitarian intervention.8
'
Yet, what is at stake is also a symbol of another internationalist project,
raising squarely the profound question of the legitimacy of the imposition
of democracy and the rule of law. Hence, the significance of getting it
right in Iraq, while at the same time recognizing that what is going in Iraq,
for better and for worse, is sui generis. While analogies are often made to
79. See TAYLOR, supra note 51, at 575-81 (discussing the primacy of the charge of
"aggression" in the Nuremberg Charter).
80. See Robert Meister, Human Rights and the Politics of Victimhood, 16 ETHICS &
INT'L AFF. 91 (2002); SIMON CHESTERMAN, JUST WAR OR JUST PEACE?: HUMANITARIAN INTERVENTION
AND INTERNATIONAL LAW 35-44 (2003).
81. However, the process of millennial U.N. reform addresses this proposed change
to some extent. See The Secretary General, In Larger Freedom: Towards Development,
Security and Human Rights For All, delivered to the General Assembly, U.N. Doc. A/59/
2005 (Mar. 21, 2005).
Vol. 38
2005 ContemporaryTransitionalJustice
postwar Germany and Japan, these occupations and their trials are distinguishable.
Iraq is also distinguishable from the Balkans and Afghanistan
because the illegality of the invasion puts additional pressure on post-conflict
justice.8 2
The question remains how to achieve some sense of legitimacy in the
transition and from where it ought to derive. What is important here, from
a genealogical perspective, is that the transition in Iraq ought not be facilely
analogized to the post-World War II period nor generalized to elsewhere
in the Middle East. Moreover, given what we now know about the
timeline of transitions, it is definitely too soon to call the question.8 3
Even in the concededly enhanced climate for international human
rights law, its enforcement still remains ad hoc, reflecting the risk of law's
politicization. Thus, adjudicating humanitarian law violations constituted
a basis to support the intervention in Kosovo. Similarly, the project of
prosecution of crimes against humanity will likely be used to lay the basis
for justifying the military intervention in Iraq. The contemporary relation
international humanitarian law bears to politics and to the legitimation of
the use of force highlights the profound tensions and contradictions in the
present global paradigm shift.
Conclusion
This article set out to review contemporary developments in transitional
justice from a genealogical perspective. More particularly, it sought
to situate the contemporary trials of Milogevit and Hussein within the
structure of the arc of transitional justice that began in the mid-twentieth
century and culminates in a framing characterized by post-Cold War global
politics.
To that end, this article discussed the distinct political circumstances
of the present trials of political leaders Slobodan Milogevit and Saddam
Hussein, addressing these processes' aims and purposes, highlighting areas
of commonality and difference. In its remaining parts, this article identified
numerous aims of transitional justice and mapped them out onto a
genealogy.
In terms of the relevant aims and purposes of transitional justice discussed
here, this article compared both processes and discussed the potential
for the role of criminal justice in spurring normative regime change. In
particular, it analyzed the current emphasis on crimes against humanity as
the subject matter that best expresses violations of human rights that go
the heart of state repression and abrogation of the rule of law. These developments
are seen in tandem with the effects of political and legal globaliza-
82. See Jose Alvarez, Hegemonic InternationalLaw Revisited, 97 Am. J. INT'L L. 873
(2003).
83. In my book, I proposed that this was the "paradox of the passage of time" of how
our ordinary intuitions are not borne out. TEITEL, supra note 1, at 62. My observation
has been proven more and more true with the many subsequent trials in Latin America
and elsewhere. See Larry Rohter, After Decades, Nations Focus on Rights Abuses, N.Y.
TIMES, Sept. 1, 2005, at A4.
862 Cornell InternationalLaw Journal Vol. 38
tion identified in the modern developments in centralization and
decentralization of sovereignty and jurisdiction. These ramifications are
evident in the current treatment of crimes against humanity and the related
efforts towards expansion of the principle of universality.
Lastly, this article discussed the relationship of transitional justice to
conflict, suggesting that this relationship has been altered and jeopardized
by the complex expanded role of the contemporary international humanitarian
law regime. The instant trials reflect the potential for conflicting
aims in transitional and post-conflict justice. As the trend towards
juridicization continues apace, contemporary adjudications of international
humanitarian rights violations serve as both a basis of and a constraint
upon humanitarian intervention. From a genealogical perspective,
the current trials of Milogevit and Hussein appear more and more within a
paradigm of post-conflict justice.