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Speaker: Elizabeth Kiss, Associate Professor of the Practice of Political Science and Philosophy; Director, Kenan Ethics Program, Duke University
Globalization has provided a new framework for dealing with questions about human rights. The global human rights movement has established a new terrain for moral, legal and political discourse about this important category of wrongs. Professor Kiss' talk draws our attention to the difficult question of how we can right the wrongs of past political regimes. Transitional justice sets itself the task of attempting to construct just institutions starting from the recognition that wrongs have been committed by prior institutions. Kiss' thesis is that while righting past wrongs is an essential part of transitional justice, human rights advocates need to accept the profound limitations which such an endeavor faces, and maintain a focus on moral discourse and debate about how to establish and maintain just institutions and procedures. She argues that we need to find a balance between seeking vengeance and moving forward. She suggests this balance can be better found if we also focus on reconstructing the community.
In arguing for transitional justice Kiss rejects two alternatives: on the one hand fighting on, by executing or exiling the wrongdoers, and on the other forgetting, by moving on without attempting to right the wrongs perpetrated. Proponents of transitional justice argue that there is a moral and political value (or perhaps an imperative) in attempting to right past wrongs. Two existing institutions provide a mechanism for carrying transitional justice out: 1) the International Criminal Court (ICC), and 2) the Truth Commission (TRC). The former provides a basis for seeking retributive justice against unjust regimes in the form of punishment, while the latter is a vehicle for restorative justice through victim statements and public denouncements..
The question we need to think about is whether the ICC and the TRC present us with an either/or choice about how we want to pursue justice against wrongdoers. Kiss argues this is too simple a model for dealing with transitional justice. Her thought is that transitional justice, in its efforts to right past wrongs, maintains a focus on three key relationships, each of which needs to be reshaped: 1) between victims and perpetrators, 2) between perpetrators and the community, and 3) between victims and the community. The either/or distinction between the ICC and the TRC obscures the fact that transitional justice, in seeking to repair the three relationships mentioned, needs more than just retribution and restoration. Kiss argues that a third tenet of transitional justice is the need for reconstruction, which focuses fundamentally on the community. Righting the wrongs of the past requires each of these three values in order to properly reshape all the relevant kinds of relationships.
Kiss concludes her talk by drawing our attention to the limits which initiatives seeking to bring about transitional justice face. Due process is slow, and immunity and amnesty are a necessary to push cases forward. These concessions place pressure against the adequacy of the ICC and the TRC to right wrongs. She suggests that creative institutional thinking should seek to incorporate her reconstructive approach. One of the most damaging aspects of human rights abuses is that they are committed by a community against itself. We need to keep that relationship at the centre in transitional justice and not take our focus away from where the crimes were committed. She closes by endorsing more localized procedures as an effective means to this end.
Michael J. Kessler
Graduate Fellow, 2006-2007