On the Very Idea of Transitional Justice

Abstract:     
Although transitional justice has had an amazingly successful career, the concept remains an enigma. Scholars have vacillated between two competing conceptions: special justice as qualitatively different from justice in non-transitional moments, versus ordinary justice that is simply difficult to achieve due to the pernicious effects of genocide or other widespread violence. This paper argues that international criminal justice currently straddles these two conceptions uncomfortably. As a branch of public international law, the goal of international criminal justice remains the restoration of international peace and security - a consequentialist rationale that could, in theory, justify departure from regular procedures of criminal justice. But international criminal justice is also informed by retributive and deontological principles at the foundation of criminal law. The Article therefore concludes that both conceptions of transitional justice are an inherent part of international criminal justice. Special justice accords with the collective security goals of public international law, while ordinary justice is embodied by the trial and punishment of individual offenders through the criminal process.

Number of Pages in PDF File: 18

Keywords: Transitional justice, international criminal law, international criminal justice, collective peace and security, ICC, genocide, reconciliation

Accepted Paper Series