Slobodan Milosevic, Saddam Hussein, Hissene Habre, 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 uses the trials of Slobodan Milosevic 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 of justice associated with periods of political change. In an ongoing genealogy, I tie the legal developments in this area to distinct political phases of world history, a framework proposed for the study of the law and politics of transitional justice. 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 follow 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 Transitional Justice.
One set of questions addressed 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. This proposed genealogy seeks to 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. The two trial processes discussed here illustrate these alternative paradigms.
The proposed genealogy is structured along multiple lines. First, it is organized chronologically, illustrating 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 structured along related intellectual trends, reflecting the connection of the politics of transitional justice with the trend toward increased juridicization of international affairs, and the law's politicization.
38 Cornell Int'l L.J. 837 (2005)