When a period of war or oppression draws to a close, how should a country face up to past wrongdoing while creating a future free of conflict? Colleen Murphy —professor of law, philosophy and political science at the University of Illinois—discusses five books that examine the issues at the heart of 'transitional justice.'

What is transitional justice and when does it come into play?

Transitional justice is the process of responding to past wrongdoing, wrongdoing that’s often not isolated but widespread; in many cases very systematic and targeted; characteristically quite brutal; and often implicates the state. Responses to this kind of wrongdoing occur in the context of an attempted transition away from war or a period of repression. It’s often not clear that a transition that’s attempted will be successful—whether you’ll actually have peace after war or an end to dictatorship, or to a repressive or authoritarian government.

The question of transitional justice, how to deal with past wrongs in the context of a transition, is one that’s global. Countries around the world in recent decades have engaged in processes of transitional justice: South Africa after the end of apartheid, when democratic elections first took place; eastern Europe, following the fall of various communist regimes; Iraq after Saddam Hussein was toppled; Central America in the aftermath of civil wars; South America following the end of military juntas and dictatorships. And currently there are transitional justice processes in Nepal, dealing with a ten year civil war between Maoist rebels and the government.

A set of processes are often used to deal with past wrongs, which include criminal trials; truth commissions, which document patterns of a specified set of kind of human rights abuses and uncover what the factors that enabled them were; reparation schemes; memorials; and amnesty provisions, which remove the prospect of criminal or civil liability for perpetrators of certain wrongs. Unsurprisingly, there’s significant debate about how we should think about each of these responses. Is justice being done? Are they simply moral compromises?

Is the issue at the heart of all this the balance between seeking retribution and moving on, finding reconciliation?

It depends on who you ask. That’s part of the debate. One common way of thinking about what transitional justice is, is the view that you just articulated: that you’re dealing with ultimately a compromise between justice—often equated with what retributive justice requires, justice as punishment for those who’ve done wrong—and other things that matter morally like peace, an end to conflict. I actually argue in my book that there may be compromises, but this way of framing the compromise is not quite right. What justice requires in transitional contexts is bound up with reconciliation, that is, bound up with repairing political relationships. Justice as retribution is not in my view the salient kind of justice that gives good guidance in these moments.

What would you say are the most successful cases where transitional justice has worked?

That’s a hard question. It’s much easier to point to failures, I think. There’s no case of full or complete success. It’s always success in certain respects and ongoing challenges in others. Think about South Africa, which has been a hugely influential case in terms of both the practice and the scholarship of transitional justice. As part of its transition from apartheid, South Africa had a Truth and Reconciliation Commission that dealt with gross human rights violations—specifically killing, abduction, torture and severe ill treatment between 1960 and 1994. It had an Amnesty Committee with the power to grant amnesty to perpetrators of these wrongs who came forward and fully disclosed what they had done and could show that the torture or the killing was done for political reasons. It also had a Reparation and Rehabilitation Committee that issued recommendations for reparations for the victims who came forward and testified that they or a family member had been subjected to abuses of these kinds.

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The Truth and Reconciliation Commission is widely lauded for a number of things it was able to accomplish. It created a vast historical record of what had happened during apartheid in terms of these kinds of human rights violations. It showed that repression was not incidental but was central to maintaining the apartheid state. It named perpetrators. It named victims. But it didn’t deal with the economic inequality that had been both an aim and a consequence of the apartheid order. It didn’t deal with apartheid itself, as a racially discriminatory institutional scheme that was itself a crime against humanity. Apartheid separated South Africans into racial categories and the racial category they were put in largely determined the trajectory of their life.

We see the consequences of foregrounding certain wrongs and not dealing with others today in South Africa, where economic inequality remains a central challenge for the current government. This is not to discount what the Truth and Reconciliation Commission did accomplish. It is rather to point to the fact that any kind of response to wrongdoing can’t do everything. Most cases of transitional justice are similar; you can point to areas in which there was success, and then imperatives that weren’t addressed but require ongoing attention.

You mentioned reparations. We’ve had discussion of reparations in post-colonial countries like America and Australia, years or even generations after the wrongs in question. Is there a time limit on transitional justice?

That’s one of the questions at the core of a number of contemporary debates, this question of time. More recent conversations are drawing attention to the fact that you need to deal with colonial legacies in order to both properly understand what facilitated wrongdoing, even when wrongdoing occurred post-independence, and understand the causes of ongoing structural inequality. Inequality in South Africa is not just a result of decades of apartheid but is also a function of prior colonialism. In my view, there is no single answer to the question which wrongs should be addressed by processes of transitional justice. What is key to recognise when deciding on which wrongs will be addressed and during what period of time is that the choices you make will frame the narrative of the transition itself. So the backward-looking question of time is how to delimit the historical period that a country will be transitioning from, and the wrongs within that historical period that will be salient.

“How long should societies be categorised as ‘in transition’?”

Then there’s also a forward-looking dimension to this question of time. This is the question of how long should societies be categorised as ‘in transition’? We can think about South Africa as in transition during the immediate period when there was the first set of democratic elections, the first democratically elected government put in place, trying to ensure and stabilise the country so that the worries about racial civil war didn’t materialise. But few discuss South Africa as in transition in the same way today. In my book I identify principles for delimiting periods of transition and post-transition. Once a society is no longer in transition from conflict or repression, redressing historical wrongs may still be necessary. Reforming political institutions to mitigate social inequality may be as well. I argue that such reparation programs for historical wrongdoing or processes of institution reform may achieve justice, but should not be categorised as processes of transitional justice specifically.

It crosses over from transitional justice into a social inequality question.

Exactly.

Read 1 Transitional Justice by Ruti G Teitel Read

Perhaps we could look at the first book you’ve chosen to recommend, Transitional Justice by Ruti G Teitel, published in 2000. Why have you chosen to recommend this book?

Before turning specifically to Teitel’s book and the rest of the books on my list, I want to clarify that I am offering a list of the five best books on transitional justice in English. This is important to note because the scholarship and practice of transitional justice is multi-lingual, and so there are lists of books in many other languages that one could also compile.

Now to Transitional Justice. I chose it because it’s a classic. It was the book that set the agenda, the questions that scholars and practitioners continue to grapple with today. It was the first book to try to systematically identify what’s extraordinary or interestingly different about responding to wrongdoing during these periods of transition away from dictatorship or conflict, and to try to do so in a way that navigates a path between realists—for whom the question of dealing with past wrongs is just reducible to questions of power—and idealists – for whom the same moral principles are applicable across all contexts.

Teitel tried to show why both of these ways of thinking are flawed: that power is salient, but not the only thing salient in transitions, and that the questions that come up in transitions are not the same questions that come up in ordinary times. To do this, she considers dilemmas that arise in transitions. For example, we think of the rule of law as an ideal that provides for stability in legal rules over time, so that we can know what the rules are and thereby form reliable expectations about what will happen if we act in certain ways. Yet transitions are about disrupting expectations. They’re about revolution and normative overhaul, shifting our understanding of what law and justice requires in a society. How then should we talk about the rule of law in these moments of flux?

“How should we talk about the rule of law in these moments of flux?”

Teitel looks at other areas of law that map on to different kinds of responses to past wrongs. For example, criminal law deals with wrongdoing and offers a paradigm response to wrongdoers: put someone on trial and, if found guilty, punish him or her. But trials are infrequent in transitions, Teitel notes, and the way we characteristically think both in morality and in law about criminal responsibility doesn’t easily map onto wrongs that implicate groups, or that implicate the state.

Criminal law also does not guide us in determining appropriate responses to those who were the foot soldiers of previous regimes, such as members of the civil service of repressive governments or dictatorships and judges during apartheid. What do we do with them? Do we bar them from serving in public capacities moving forward, or do we just allow them to continue to serve because they have skills and expertise that is needed in the new government?

If you’re going to understand transitional justice, and the inherent tensions between stability and transformation and the complications inherent in attempting to draw a line between the past and future during transitions, you should begin with this book.

I get the sense from this book that transitional justice is a subject that spans many fields. It does not comprise simply questions of law, it also asks huge ethical questions, and questions of governance. How long has transitional justice been in existence as a field in itself?

There’s disagreement about where you mark the beginning of transitional justice as a practice. You could go back to ancient Athens, or to Nuremberg, or more recently to the transitions from military juntas in South America in the 1990s. However you slice the practice, it’s still a relatively new field of scholarship and it is, as you pointed out, deeply multidisciplinary. It encompasses scholarship in psychology, political science, law, philosophy, and criminology.

Read 2 A Human Being Died That Night by Pumla Gobodo-Madikizela Read

Let’s move on to your second book, A Human Being Died that Night. Tell me about it.

The author, Pumla Gobodo-Madikizela, is a black South African clinical psychologist and she was a co-ordinator for the victims’ public hearings in the Western Cape for the South African Truth and Reconciliation Commission.

So, this is post-apartheid.

Yes the book is about post-apartheid South Africa, but Gobodo-Madikizela herself grew up under apartheid. In the book she interviews a white Afrikaner, Eugene de Kock, a staunch advocate of the National Party that had maintained apartheid, a member of the security forces who had been dubbed ‘Prime Evil’ for the role that he played in the kidnapping, torture, and killing and of predominately anti-apartheid activists. She went to interview him in prison, intrigued by him because, during his appearance before the Truth and Reconciliation Commission, he expressed an interest in apologizing to the widows of policemen killed in the Motherwell bombing, one of his operations. That sparked the question: what would lead Prime Evil to apologize or engage with these widows?

Gobodo-Madikizela gives invaluable insight into the psychology of perpetrators, the psychological impacts on victims of horrific atrocities, and how we think about possibilities for moving forward as a community post-atrocity.

Was there any question that this rush of remorse came from a place of self-interest? How did she become convinced that this was an authentic response?

That’s always a worry about whether remorse or apologies will be faked. That’s actually one of the reasons that the Truth and Reconciliation Commission in South Africa did not require an apology or make an expression of remorse a condition for getting amnesty. I think the sincerity of de Kock’s remorse is demonstrated by what has done since he was released from prison, which has been to go around and systematically try to make amends to members of the black South African community that he harmed during his career as a security agent.

One of the things that I find most interesting about her portrayal of him is that it challenges a common conception of a moral monster as a psychopath. As Gobodo-Madikizela herself writes at one point: most people who engage in human rights atrocities aren’t psychopaths. It’s not that they’re unable to feel guilt. It’s that there’s complicated narratives and ways of being in denial about what you’re doing, by for example seeing it as justified for the greater good. Certain background institutional and social contexts also make it possible for ordinary people to do absolutely heinous and horrific things. This makes the question of preventing widespread wrongdoing much more complicated than often thought.

“It challenges a common conception of a moral monster as a psychopath”

De Kock illustrates these points. If anyone was guilty of evil during apartheid, de Kock was. The references to what he did in defence of apartheid come out in various ways throughout the book. But it’s also clear that we’re dealing with an ordinary human being. He recognized that he did things that most human beings couldn’t understand. It was done in the shadows of the community. But he had a justification for what he did. De Kock believed that the security and future of white South Africans was in peril. So de Kock viewed what he was doing as defence of a community that he cared about, and who in order to survive ultimately relied on people like him doing what he was doing. At the same time, he articulates how he rationalized and justified horrific wrongdoing, de Kock articulates his moral limits during these periods, almost as a way of demonstrating his humanity and morality. At one point, de Kock says to Gobodo-Madikizela, ‘I did horrible things but I never touched kids. There was a limit to what I would do.’ Because so many children died during security force operations, she thought that was too incredible to believe, but then she talked to people who confirmed that he viewed and treated children differently. He paused a major gun battle one time because there was a little kid in the hallway, and he wanted to make sure the kid went to safety.

If they are not psychopaths that’s frightening, isn’t it? You cannot screen for such people, if there is nothing to mark the man out.

Gobodo-Madikizela talks at certain points about how maybe there’s a slightly higher propensity among people who’ve suffered violence as a child, which de Kock had as well. There’s inculturation, growing up in a community that dehumanised black South Africans, a community that saw South Africa as a state for white people and white people only, who were the real citizens, and so they became immured to the suffering of other people and had a lack of empathy for black South Africans who were part of the community.

The other part of Gobodo-Madikizela’s book I find especially compelling concerns her discussion of what that violence meant for victims, and for black South Africans like herself who weren’t direct victims of torture or killing or abduction, but suffered the consequences of living as a second class citizen and always under the threat of violence during apartheid. For direct victims, you learn of the trauma that violence leaves, the psychological scars and the physical scars, the shattering of assumptions about the nature of the world and the human beings in it.

A Human Being Died that Night is an incredibly powerful narrative of who is responsible for horrific wrongdoing and the human cost that that wrongdoing has, on perpetrators and on victims, more importantly.

Read 3 Atrocity, Punishment, and International Law by Mark A Drumbl Read

If we’ve focussed in on the case of South Africa, your third choice, Mark Drumbl’s book Atrocity, Punishment, and International Law looks at the broader global picture.

That’s right. It brings into focus the role of international law, international institutions, and international actors, which are increasingly very influential in shaping domestic decisions about transitional justice. I think Drumbl offers a profound critique of certain expectations of what international criminal tribunals, as well as domestic trials, are able to achieve as a response to mass atrocity. For those who believe these trials are mechanisms of retribution, deterrence, and expressivism—expressing our communal values—Drumbl demonstrates that trials often fall very short in achieving these aims. He also points to the inherent limits of trial and punishment as a way of responding to atrocity, given that they cannot address the conditions that facilitate atrocities. Going back to what we were just talking about, with atrocities you are not just dealing with individual actors who are bad apples, but with rotten systems as well, that facilitate wrongdoing. However, trials deal with individuals.

“Drumbl offers a profound critique of expectations of what international criminal tribunals are able to achieve”

Drumbl’s book issues a call for crafting international norms and international standards for responses to atrocity so that there can be a place for indigenous values, for restorative processes like truth and reconciliation commissions, and for responses to structural violence and inequality. He tries to find a middle ground between those scholars or practitioners who conceptualize transitional justice as exclusively local and context-specific—one-off responses to wrongdoing—and those who believe there is a general toolkit of responses that will work in any context. Like Teitel’s book, Drumbl’s book is a classic, but in a different way: it examines in detail the place of international law and international tribunals in transitional justice processes, and then sets an agenda for how to do better moving forward.

Regarding international tribunals: is deterrence seen as one of their functions?

There’s disagreement. One of the interesting things that comes out of Drumbl’s book is that even for participants, including judges, it’s not always clear what exactly the rationale is for these international institutions. Retribution comes up often—meting out justice in a way that’s deserved for those who’ve done serious wrong. But deterrence is also prominent, as well as the aim of expressing the international community’s rejection of the permissibility of certain kinds of conduct, which can be seen either as important for its own sake as well as important for its deterrent effect on future political leaders thinking about engaging in similar kinds of atrocities.

Read 4 Imperfect Justice: An East-West Diary by Inga Markovits Read

Book four is Inga Markovits’ Imperfect Justice: An East-West Diary. This is an account by a lawyer, a day-to-day account around the time of the reunification of Germany.

Yes. It’s a diary of Markovits’ interviews and conversations with East German judges, lawyers, and parties to legal disputes — either in labour law or family law — immediately before the reunification of East and West Germany, and then right after. It tells us about the ripple effects that transitions have on different areas of law and on ordinary citizens, citizens who may not have been perpetrators of wrongdoing or direct victims of wrongdoing, or even collaborated or been complicit in wrongdoing, but are nonetheless affected by transitions.

“Transitions don’t always benefit everyone, and they’re not always welcomed by those who face regime change”

Part of what comes out in her book is that transitions don’t always benefit everyone, and they’re not always welcomed by those who face regime change. You hear about workers in factories who can no longer rely on being given compensation if they’re laid off, as had been the case under the East German system. People lose the rationale for their career, and for the sacrifices they had made for the sake of job security, which no longer existed. A lot of ordinary citizens struggled to find a place in the new society. Professionals struggled too. Judges who had a certain skill set under a socialist legal order found themselves looked down on, and not valued in the same way. While we think of transitions as important achievements, they have differential effects on members of transitional communities.

Markowits’ book is invaluable for that basic insight, and also because it raises the question of lustration. Her book offers a nice set of reflections on the question of who should play a public role in the new order.

Recently, the author Will Storr discussed the book, Stasiland, which he said completely changed the way he thought about East Germany. Anna Funder, the author of that book, made the point that employment had been much higher under socialism. On a day to day basis, many people had enjoyed that sort of stability.

Yes. I think that the uncertainty of what will happen in transitions comes on many levels. There is characteristically uncertainty in the overall political trajectory of the society. Then there is also uncertainty at the individual level: what does this transition mean for me? What does it mean for my job security? Can I even talk about job security in the same way? What does it mean for my children and the future they have? For older individuals: what does it mean for retirement or pensions?

In places, for example the case of Rwanda, where you have entire ethnic groups set against each other, for the group that has been the aggressor, it must also involve an enormous amount of change, as they adjust to their new status in the world.

Yes. The loss of privilege is never welcome. Finding a way to successfully navigate the recognition of undeserved privilege and acceptance of equality of those who were previously seen as and treated as unequal is absolutely essential for long term success of transitions. Otherwise, you get resentment that develops. You get seeds for future conflict, or a refusal to actually deal with structural inequality. When you look at a place like South Africa for white South Africans or if you look in the United States with white Americans, you see ongoing challenges in dealing with accepting that other groups that were historically looked down on as second class citizens are entitled to equal rights and standing as well.

Read 5 Brothers of the Gun: A Memoir of the Syrian Civil War by Marwan Hisham and Molly Crabapple Read

Let’s turn our attention to your final book choice, Marwan Hisham and Molly Crabapple’s Brothers of the Gun: A Memoir of the Syrian War.

I chose Hisham and Crabapple’s book as my fifth choice because it’s an incredibly powerful account of the ongoing civil war in Syria. It’s the story of three friends in their early twenties who participated in the initial protest against Bashar al-Assad in 2011, and what happened to them in the intervening years. Marwan Hisham is one, and his two friends—one of whom was killed and the other became an Islamic revolutionary over this time.

I chose this book because transitional justice, both in practice and scholarship, is grappling with this question of time that you raised, and asking whether transitional justice can be pursued prior to any meaningful transition. This book gives us a picture of what it means to pursue transitional justice when there isn’t yet a transition on the horizon, when you’re actually in the context of ongoing war and ongoing repression, where there’s no peace accord. It’s not clear who will be the victor, and if and when this civil war ends whether you will have a dictator step down or not.

Throughout the book, there’s the constant refrain of death—death of a friend, death of family—and of torture. There are these segments of torture woven throughout, either torture as recorded or documented on social media such as Twitter or in YouTube videos. The uncertainty of what will happen tomorrow is also powerfully captured. The author, Hisham, writes about the area that he lived in going from being under control of the government to under control of the rebels to under control by Isis. Citizens just lived day to day, not even thinking long term about what could happen a week from tomorrow let alone a year, in this context of shifting control of territory, of shifting control of property. Apartments are taken by one group and then taken control of by another. Property isn’t secure or sacred. There’s corruption. There’s poverty that shapes the background that he grew up in, that becomes more acute as war progresses and as buildings are destroyed and food becomes scarcer. Hisham discusses dealing with the anger and despair at those conditions.

“It raises questions about democracy itself: is that an ideal that all transitional societies should aspire towards?”

The picture it gives is valuable not only for painting the context within which discussion of transitional justice processes might take place, but it also gives an incredibly vivid depiction of life under war in the context of repression in a way that touches on so many of the questions that transitional justice scholarship and practice has to deal with more systematically. He draws attention to the way in which this particular conflict, like so many, has become a proxy battle for international actors and international power struggles. It draws attention to the movement of people, as he himself moves at a certain point to Turkey in exile from Syria. You’ve got millions of people who’ve left Syria as refugees, what role will and should they have in processes in transitional justice in the future? It even raises questions about democracy itself: is that an ideal that all transitional societies should aspire towards?

It’s an incredibly beautifully written and illustrated memoir which raises profoundly important questions that are at the forefront of transitional justice now, questions that we don’t really have adequate answers to, concerning how to think about refugees and their place in transitional justice, and how to think about the involvement of foreign actors in civil wars and civil contexts.

To close, perhaps you could tell me a bit about your own book on the subject of transitional justice.

Sure. It’s The Conceptual Foundations of Transitional Justice. Building on the work of Teitel and Drumbl in many ways, I articulate an account of what it means to do justice to past wrongs in these transitional moments, and to do so in a way that demonstrates why context matters to our understanding of what justice requires in any particular case.

In my view, the ultimate goal of all of these transitional justice responses is societal transformation. More specifically, the goal is transforming the relationships among citizens, and between citizens and officials, so that they’re no longer—in the language I use—structurally unequal. Structural inequality in the opportunities afforded different groups of citizens by law is problematic in itself. It also conducive to systematic wrongdoing that becomes a basic fact of life that citizens during conflict or repression have to orient their conduct around. Processes of transitional justice can contribute to this transformation by condemning actions that were permissible in the past, for example, and documenting the underlying conditions that allowed atrocities to take place. They must also, I argue, contribute to transformation in a way that does right by victims and perpetrators who participate in these processes; I articulate conditions for treating perpetrators and victims fairly and appropriately.

My book brings moral and political philosophy into the conversation among journalists and legal scholars and at the same time, draws on their absolutely essential work for understanding transitional justice.

Which philosophers do you see as being most relevant?

My starting point is Hume, who I believe offers a compelling methodology for identifying the moral demands of transitional justice. Hume very famously claimed that principles of justice are problem-responsive; they provide normative guidance for resolving a problem or question of justice that arises in a set of what he called ‘circumstances of justice.’

Hume thought instability of property was the central question of justice, and that question became necessary and possible for communities to address in circumstances such as limited scarcity of goods. If there’s extreme scarcity, he claimed, you can have all the rules you want, but no one is going to constrain their conduct if they’re facing starvation. On the other hand, if there’s extreme abundance, you don’t need to stabilize property claims, because it’s not necessary. There’s no pressing issue to be resolved in specifying whose loaf of bread is whose.

This is why my starting point was identifying the circumstances of justice that characterize transitions, and then articulating how best to understand what the question of justice is in those circumstances. I also discuss theories of retributive justice, corrective justice, and distributive justice, and why the question of justice in transitional circumstances is not the question these theories take up.

In sum, Hume, I think, gives the key insight for understanding what transitional justice demands: if you want to talk about justice at any time, you’ve got to first understand the context that you’re talking about, and the question of justice that’s salient given that context.